n.
15.; V
PIRM14...
:*-rexܪܪ܀ ، ܕ،، ܀ 1
:
1-;?"
DUPL
* **.515.
***...>
.."!!! *****:!.
8 348592
?F neܝ-.:-;-»!.ܪܕܪܨ ܕܪܕ݂ܳ ܀܀ ܙܙܟ݁ܙܪ?*
,., ܀. s
-
Iܨ-4-
xcit :: . ܕܕ*
ܙܙx£- ܂ ܙܪ ܪ܆ ܐܼܲܫܕ
P -* ܀ ! raܛܘ ܬ݁ܰܪܫ:naܢܝܕ:*-;.
ܐ ܝܠܙ;4-ܪܘ
jiq ܇ ܬܼܲܕ݂ܐܵܙܵܐ ? Ms:: :; !: ; ܕ: ;;ܙܪ
yܐܼ ܂ ܀܀.-[rr1ܕ
ܕܐ!.crri
::
5
:
;
qqܪܶܠܐܕܙܕܗܕܗܐܕ :;-4&%8ܕܐ܀ ܕܐ݇ܢܵܕܵܐܪ,?-;«!ܗ݈ܪܪܳ?! ܀ '1;:1,ܪܝ ܗܼܼܲܘ ܕܲܪܲܙܬܼܐ;
ܕ;: ܝܺܕ݂ܞ: -ܫܲܪܫܐ49-:، ܕܝܼܪܹܐ ܕܕ :܂܀ ܪ܀: ܂ ::: : : ux܀. ܕ.3 : ܣ ܝܙ. -:eft ziܕܡܐ,;54
xxjpx ܀ , ?.4. ;.ܨ ' ܪܼ::c!. 8ܐ & ܕ?;f-;!« ܕ݁ܰܫܝܳܐ܀ ܕ݂.49;[- ܀
e܀ ܝ. ܕܕܘܝܪܽܪ -* ܡܪܢ;'iaܪ::ܙܝ ܐ݈ܐܙܛܳ܂
::ܕܼ ܀ - ܀ H•ܐܕܙܕܕܪ ܕܼ ܀ '"- ܐܶ y ܫ ܇ ܕܲܪ܀ ;»:ܕ݂ܦ
܂. ܐ܇܇܇܆܆mitܪ.܂ fi; ܕ ' ܘ:;. ' ", !«
;; ;.tܐܐ + ::::-:M,ܪ:܂ :;:2:ܙ .1.
ܪܫܪ:ruirt4ܫܬ̣ܙ
-Arx
;
qu ܃ ܃ ܃ :: ܕ. ܙ.yri -f
-
!!!
xܨܲ:342 •fܟ܀܃ ܢܸܕ݂»H܀ ܕ݁ܡܶܕ݁ܶܡ ܙܙܨܙܪܳ ur
|: *itܝܼܢܵܪܵܕܪ܀;qܙܢܕ{: ܘܕ݂ܓ݂ܶܙ:܀ܪܽ܀
ܙ »;ܫܕ++u
;
vifcit '
-: (E
:
tfܝܡܪܲܝܽܬ݁!::: :::: !?4:iAܬܝܪܳܙܕܕ݁ܢ݈ܫܙ. ,܇܆܇܆ ,ܙ;:12
:
9ܕ ܐܝܕܟ݁ ;: ܐ܀: ܪܐ؛؛ ܡܚܬ݂܀ܕ݂ܟ݂ܟ݂ܝ̣،
. ܊ ܐ܇ ܕܝܽ3܃ ܪ ܀ ܕ܆ .(kry܀: ܀ ܢ ; *. ;
ܕܲܟܼܝܼ ܕ܇܇ ܕܡܵܨܺܝܪܪܬܸܐ ܕ+ܐܬ: 8 34܀ ܕܲܪܪܸ،'a
:
%
as xܪܺ| ܀ ܀ ܀:rm
/
ity4kfki܇܇܇܇ ܚܲܕ݇ ܕܸܝܼܫܐܵܘܿܐܼ ،ܕܼ܃܇܇:1 : : ; ܪܐܢܐ irܝܟ:...-
ܪܨܕܢܪܨܙܨܕ݂: ܕܕ݁ܺܝܕ݁ܢܐ
ܢܪܵܕܨܕܪܪܝܺܙܬ݁ܫ: ܡܳܐ ܢܕ݂ܽ-;'- -.; ;;;; ܗܵܐ ܕܨܲܙܸܡ !j܀ ܘܲܕ݂;:*ܘܨ܀ ܐܪ܀ ܕܕܞܕܕܐܙܶܝ: ܝܢ
q
;
zinfm- ;: : ܢܙ܂
ܚܕܬܐ ܕ݁ܛܰܫܝܳܐ܀: ܛܢܐ، ܘܬ ܕܕܳܙܕܳܕ݂ܺ-$-:t ;{&ܐܲܬܼܵܐ ܂ܕ ngitcv
, Prin
-
iivi+ܝܪ -?**;- -??:ܛܼܲ:4ܪ ܀܀ ܀ !?:-- ;::" ;; ;;ex ;.ܪܬܕܪ܃
ܗܿ܆ ܀ ܕܐ ܐ ܗ ;ܨܝܳܬܵܐ. ܐܵܨܵܚ ܪ4 ܕܙܐ::܀
ܙܪܨܙܕܪܐ ܬܙܐܗܕ܀ »?,? ! n-*«$ :& {«: ><> ܬܕ܀ *:: ?: ?{; .29| ܙ ܕ܀
-n܀::iorܝܲܬ݁ .: ܝܝܝ. ܕ: ܐ܀܀. ܀܀ :::--; -ܕܕܨܝܕܕ
ܪܐܕܝ
:;.. * f-:܊
viri;".-:::
78.rip
--ܪܙ ܝ ܤ܀
fc: ant?}:- ;:
ܨܟ݁ . ܪܪܝ܂ . ܝܙ.;!.c
«:܆
. ܟܙ܂ܗ ܪܲܫܢ «,;ܞ
.܀:r' ܟ݁ܺ܀، ܆ ܕ ܕܝ ;; ܪܝܕ
24hours!
-& ficiat% ܕ !fa
܂&4,4܃ . -"ty1
;;
*
.
;
::
K܃ ܨܲܗܸ، ،ܡܵܨܲܪ tr ;4 .4܀ , ܟܼ ܃ ܇ ܀ܜ܀ 348 - ܫ ܟ
4
:
4-!:r:; 46ܐܼܝ݂ ܙܵܕ݇. ܐܲܢܵܐ ܃ ܃ ܃܇܇ ܪܸܐ. ܐܪܐܪ:rior exit ܪܪܝ ܀
1:99؛
.«&
ده اند و نه
d.
ܕ݂;;
- ;; ܪܛܨ ܪܪܪ)?܀܀ q
،
um
.
?
vܝܙ?, r- ܙ
-ܙ ܪܕܙܕܫܠܐ ܀: iftܕ ܪܲ܆ ܀ ܀e
'
.-
i:
* '3' ::liq
isti**.: 4:17.31
، ܕܐܼ.is
;
-H
;
e ; ,4
:
4 . ܕ ܙ ܐ ":fܨܪ ?ܕ܀ firܐܘܠܐ;»;- ܨܕܪܝ. ܕܕܐܐ
**: I
ic'r###ܕ%
ܕܨܳܙܳܟ݂ܪ̈ܪx
.
k: ܀ ܕ ܕ. ܫ܂ ܐ;priyܕ
; urܪ
:rufܙ *ܟ
ܗܙܕܪܐܲܢܸܐ ܝ̄ܢܵܐ. ܛܼ;'
I...
**** 11 *** 315:2***.147
ܟܙ -7-
ܕ ܐ،، ܀; ; ܫ !- ܙܬܐܘܪܪܪ:f
441
4:
܊ ܪܐܙ; »#-?sܟ ܐܪܟ ; ܀܀:gi܇ ܗܼܼܲ،ܐܼܟ݂:11:iary 3
:
"
:
xܕ
ܕܕܐܐ ܙܐܝܕܕ ܀ ܕ.܂ ; ; ;;?;! ܃ܪܼܲܪܲܕ : -; ܀ .. ܝ ܫܐ ܀
ܐܵܝܼܼ ، ، ܕ:: ortyܕܼܪܵܐ؛؛؛؛ -3:,, ., ܦ : ܐ:. , ܀
..f، ܪ ܪ܃
: vehi
!
ry
:
Myrܪ -?**;, ql'feiftri .
, y܀ܪ1 :܀ ܪܶܫܪܐ
cupcgi-q£- . ;;;! -
ܕܙܕ݂ܳ܀ ;.: !;? ܐ ;chifquin
.;
irit
:
I62xxx!!!ܕܐ
;:ܚܲܕ݂ ܪܵܐܲܪܪܵ wij%
ܕ ܝܢ ܙܘ̈ܙܐܛܕܕ܀ qu?* ..܀܀
ܟ݂ ، ܟܼ ܘܲܙܵܟܸ !!!: i܇ ܀ ܖ ܀
-ܪܪ ، ܀ 1؛ -:i
:
:::
-
if܂
ܕܼ ܕܸܕܼ ܀: ܀ 'n"!?": ، ܖ ܖܝܐ
: r، ، ، ܪܸܙ ܟܡܐ: :* ܘܚܝ ܫܺ
;: aq49f3,4ܐܪ ܐ!? ; .. ܐ܇ ܕܪܵܕܹܐ܀: ?ht
wat
;ܡܼܿc
(
-w(: ܕ݁ܓܝܺܪܪܝܟܪ ܠܐܐ .: i܇ ܀ ܇
: ܫܝ .rܕ:?!!* !-;]: ܐܶܬ݂ܝܵܐ)..ܩܲܟ'" ;:1܀ ܪ܂ - ܀
. ،int ܀ ܂܂ ܂ ܂ ܨ܀.
ihi ?:RA
*)***3
!!! Ave.
ri:1A:-E; r;
:***.921:
j*** they , **!
-;&x-ܕܹܐ ܙܠܐܗܘ
-: ܫܙܙ ܟܝܫܕܪ :;.. ܕܐ;mficisܝܼܲ ܕܡܵܪܬܵܐ
!. ܪ܀ ;4.ܝ ؛ ܕ
********
M36ܕ. ܕܟܕܼ ܕܼ:" ;
ܕܡܕܡܼܲ «-;« ܒܪܢܫ. ܕ| ܝܺܕ݂ :܀
;܀ ܬܸܕ݂ * ; P
::
[
Aio-܂ ، ܙܨܕ ܦܪܐ:.
ܙܝ ܝ ܠܐ ܗܘܵܟܼܝܼ؛؛؛ ܀. --, -_ ;: ;4ܕ݂ܢ ܝܙܝܢ ܝܐ ܃ etܕ: ; ;-$; ܀
ܓ݁ܰ-£4,8,iܐܟ݂xxzt
:܂ ܗ݈ܪܰܚܬܐ ܕܝܙ!!!ܝܵܪܝܸܙܕ݂ܵܙܳܕܺܬܝܺ ܕܰܐܝܺܪ ܐ 'tut -ܛܕ
ܙ ;x!- 1
:
1 ܫ ' ܫ .'",ro
; ; ܙ ::ܟܼܝܼܢܹ ;:tx
، ، ، ܐ ،،، ܀ - ܐܼ،ܬܙ:fjiiܕܳ܀
{.}ijieron.:
vi's!
**!!
ܪ 343:d Hܫܢ
ܙܟܞx
.
-
rܕܝܫܕ܀ ܙܐܙ::af!:-܀ ܟ ܕ 8
. .! ܐ .
ܝܼ ;'? !;;; ; ܕܢ ܐ ܕ ܀܀!-::: :ܠܐܕ ܕܪܘ ܕܲܕܼ ܇:r;:܀ ܀
$-::!]، ܘܲܟܼ ܕܲ!?yfܗܲܕܐx :ܕ݁ܰܪܙ. ܕܪ
:::-; ܝܝܘܕ :;ܙ' d ;-
? !}hi«ܐ: ܟ:܀ ܕܲܬܪܹܗܕܐ:,.1 -
܀܀ ܕ # h
??
:)
-I
ܐܙܪܙ * ܕܙܙܲ:ܙܙܕܙdif ;14:ܐܙܢܶܐ ܀: ܕ ܕ܀' -gif' : ܕܙ ?;44,4;.' " :;- ;! : ܂
;1 ;,; ;; ;; ܀ !!81% ܕܛ܀ »!ܕ܆ܪܐ ܕܕܣܪ
4 và tỷ giá 3-4 3 :* ,
**-?,: *11**************
ܐ ܀ 4܀. f,. ܃܇ ܀ ܙ:ܝ ܨܪ،، ܟܼ ܃ ܂ ܕ
܂ ܝܐܪܢܐ - , ui
,
dico، ܐܵܬܙ ܕܐܪ : ܪ ·ܪܵܐ ،، ܨܨfܟ݁ ܀
ܬܸ:/ܨܕܕܝܕ:.Mix_, ܐ»; $*.!]y
-
:
r ، ܃ ;: ;:
:{eܐܙ,: .ܕܝ ܕ ܐ:::-:'r'- ܕ ܙ. {ia܃܇ ܀ 4
.;܆܆܇܆ ܐܼ ، ܀ ܨܶ܀ ܟܕܕ݂ܐܟ݂ ܐܢ ; uce، ،ܕܵܐ ܕ ܙܕܕ
*******:72 kr
ܘܠܐܝܝܪܳ
»; ܆ ܪ܆ ܀ ܬ݁ܰܙ. ܫ .:ܙ. ܙ ܚܟ، ،ܚܵܐܗܝܕ: }&ܐܼ ܛܼ
Rin
:'
LA'...
- ++ 41-,4; : *:: ::܀
-'**come .
• Ái • 41 : 1 * : + + + + + : * , 3:
ܕ ܕܞ. -::::";4iis :: ܐܪܨ ܫܪܙܙܝܘ •
SOY***!)$"
miril,
܂ ; ;£P
1
.ܟܙ ܢܕ ;; h;,، ،ܨܵ ܕ 4 !،ܕ ;' 8 ::2܀ ܢܼܲ ܢܸܕܐq
;
'
i
;
t
!r-ܕܲܫܐܪܝ.܀
܀ ܀ ? !9
1?.8.arc
15:54 ' ;. ܪܕ ܪ
"! jest
ܐܘܕ݂ .-qfoium;.܀܀ 4
HTTP:"1..
Tietz*.**.
sirodo
ܪ ܇ ܇ ܀
iܐܢ܂
1
ܪ
.;- !;if
&&
:
riܪ
܆ ܟ݁ܰܕ݂ ܀
ܬܪܝܕ%xyz
;
:
y/:
ik fiii; ! .
+ ;. *********
1714.1***
ܘܿܪܲܝܙܐ :::1܀
ed.
pingen. ********
**1,91111*... *****
'i
ib.
، ܪ .8ܕ ܀
3
;rܢ | ܚ| ܪ*، ܘܕܠܐܙܕܕ
ܐܠܐܐ
-ur iif
9.144:
.'ܙ
ܙ 1.1
:
1
1.7.!
܂ ܐܝܨ
r's : 27.04.1...
306:. fb.si
.*2.4 til:
i:
ܙ :::;;:n
###
iܠ18ܪ܀ ;
.܀;;;irܕܪܕ
q ; ;»:i
1
1 DA
f»f:?
ܙ܂ ܨ ;:::f
ܕܚܲܕܐ ܪܨ :xiiij.
3.1.1
::;
20. -
f:
!
ijb1ܐ
1.4
118ܨܝ
ܕ . , ' ܀ ܫ ܙܕ
-,i- ;:;18
:
1 ܂1 -4;
- ܐܕ، ܪܲܫ ܙ .: :, ܀܀!,?f..
..• : :«:-;i) ;* ܕ:: ܕܐ
; . ܙi. '
347.21: Y: Ngati Talk
*4.824: 300? ;; Dobes: es.-
..? -**40?!*1,*,**. ?
=، ܙܙ :30eei܀ ܪܸܬ݂ܗܝܪܝܺܙܙ ;-; :: :; -: ، ܕܪܸܝܵܐܙܨܪܶ *f1.1'-
ܒܪܸ، ، ،܀ yfi)!- .;، 8- :ܗܨ -ܝ݂܂ ܝ ܙܶ܀ -F: ܐ: ܬ܂
'" r.6.1- -iܪ܀ -4;: ;: ?::fit܀X.:i- * ܀܀܀ ܇4܀
1.4.16., 7. ;*pastoties pie pieni??!!!!1:14; 449%**'}**.*
+ + *** :* * * * * * * * * : vị 1 21:: ++ **
&jrio'p: .
.vit,
1-eܙܝܹܙ ܘܕ܂ :; ܙ .܀ ܨܲܙܕܕܙ ܀܂ ܀ ;, ܙ. , ?-;- ; -, .2 ,4.
ܙܙ܇܆܆܃ ܃ ;: ::::- ;iqܫܕܫ - ?& !:»!;$/.tc -;; ܙ!rf MAܕ. ܕ܇܇܆
܀܀ ܕܲ:x : ܕܝܨ: :::: :ܕܙܲܙܯ ،، ܀ ܀ ܝܺ܀ ܀ ܀ ܀ 7:-
.{imolܐ܀ ?'
:::.1܀
܀ Hwij;&
ܕܚܕ
***: 1
H..!**-******
.:-. *****
..
.ܕtxxj
: ܟܼ ܃ ܃
ܕܕ ܆ ܙܪܙ ܙܙܕ݇. !- ;t - ܙ. ' ܪܙ ܀}'1. ܀ t
ܪ݇ܬܵ ܕܲܟܼܐܼ.ܪ-.f; ܐx "' :: !' .. r'r' ;*ܙ - ܨ܃ ܂ · ܕ · ܕ܀
ܬܕܙ ܪܪܙ : !.::;1: ܙܶܙܳܕ܀ - ܨ - ܙ: ܚܕ݂ ܇ ܀ : -+-+-ܪ ܝ
܂ ܙܐܕ {.sti-; ܀
!",
.
WWW.! 01:42:27 vitito!; *.814--23:30Out!!!
ܕ: ; ܙ !. .'1. ܕܟ. ܊ ܕܼܕ:. .- ܕ : ܙ ;
-1 "; ?;;- ' .;- ;-- :!
.ܙ
[;
܀ܙ-ܪܐܬܐ܀ ?.h
-
ic܆ *
܀
4
ԲԱՆԱԼ։
1837
uuriithin
ARTES
SCIENTIA
VERITAS
LIBRARY
OF THE
UNIVERSITY OF MICHIGAN
UNUM
TIPRIAUPPAAN
TIMEBOR
with the time
SI QUERIS-PENINSC!AMAMONAMI
CIRCUMSTICE
WA
W.STUU...JIAJI.15%
بعد دعا .
lililili
Will IIIIIIIIIIlllll
AHILHIIIIIIIHINUIIII
Ilirr.
TAMININ MInnm IMUNOHIMI
SIRIHnin
JX
4505
В 17
1
;
SELECTED TOPICS
CONNECTED WITH
THE LAWS OF WARFARE
AS OF AUGUST 1, 1914
son
Prepared byssa
JOSEPH R.BAKER
and
LOUIS W. McKERNAN
June, 1919
OF STATE
1
PARTMENTS
ITED
STATES
OF AMERI
1
WASHINGTON
GOVERNMENT PRINTING OFFICE
1919
}
D
모 ​2
351,7
مر
APR 29 1920
SELECTED TOPICS
CONNECTED WITH
THE LAWS OF WARFARE
AS OF AUGUST 1, 1914
Prepared by
JOSEPH R. BAKER
and
LOUIS W. MCKERNAN
June, 1919
OP
PARTMENE
DEF
STATE
UNITED
MERICS
STATES
OF
WASHINGTON
GOVERNMENT PRINTING OFFICE
1919
TABLE OF CONTENTS.
}
Commencement of war_-
Effect of war on individuals—Enemy character of persons.
Nationality of corporations.---
Enemy persons in belligerent territory
Enemy property in belligerent territory
What is enemy territory.
Effect of war on treaties
Suspension of intercourse with the enemy-
Limitation of power to contract_
Suspension or dissolution of contract_
Cessation of interest on obligations-
Licenses
Martial law.
Offenders against the laws of war
Retaliation or reprisals_
Cartels
Interference with communication
Passports, safe conducts, and safeguards.
Wireless telegraphy
Aerial warfare
Inviolability of public minister
Postliminy
Termination of war-
Treaties of peace---
Treaties of peace, who may make-
Treaties of peace, provisions of..
Treaties of peace, when they take effect-
Treaties of peace, effect of...
Things done after conclusion of treaty of peace.
Conquest---
Page.
1
46
68
123
150
203
220
270
300
327
370
374
412
477
491
521
529
539
563
580
610
618
664
679
689
701
710
737
752
768
APPENDIX.
Nationality of corporations---
831
III
376930
ABBREVIATIONS.
/
Amer. Journal International Law American journal of international law, V.
1-11. 1907–1917. N. Y., Oxford university
press. (Supplement, v. 1-11, 1907–1917,
special numbers, 1915, 1916.)
Austro-Hungarian Manual.. Anhang zum Dienstraglement für die k. u. k.
Kriegemarine (Internationals Sea-und
Landkriegsrecht). Vienna, 1913.
Baty and Morgan.--
..Baty, T., and Morgan, J. H. War; Its Con-
duct and Legal Results. London, John
Murray, 1915.
Black--
_Reports of cases argued and determined in
the Supreme Court of the United States,
December term, 1861, to December term,
1862. 2 v. (included in U. S. Reports as
vols. 66 and 67).
Bonfils---
Manuel de droit international public.
By Henry Bonfils. Seventh edition,
By Paul Fauchille. Paris, 1914.
Borchard----
Borchard, Edwin M. The Diplomatic Pro-
tection of Citizens Abroad. New York,
Banks Law Publishing Company, 1916.
Cobbett -
-Cobbett, Pitt. Cases and Opinions on In-
ternational Law; and Various Points of
English Law Connected Therewith. Part I,
Peace, Part II, War. Part III, Neutrality.
2 vols. London, Stevens and Haynes, 1913.
Cranch.---
.U. S. Supreme Court Reports, 5–13. U. S.
1801-1815.
Crandall
--Crandall, Samuel B. Treaties, Their Making
and Enforcement. New York, The Colum-
bia University Press, 1904.
Ct. Cl.
Cases decided in the Court of Claims of the
United States.
Cyc---
Cyclopedia of Law and Procedure. William
Mack, editor in chief. 40 vols. New York,
American Law Book Company, 1912. Vol.
40, Wilson, George Grafton, article entitled
· War."
Dall___
Reports of cases in the courts of the United
States (1790–1800) and Pennsylvania
(1754–1806).
V
VI
ABBREVIATIONS.
Edmonds and Oppenheim.- Land Warfare. An exposition of the laws
and usages of war on land, for the guid-
ance of officers in His Majesty's army. By
Col. J. E. Edmonds and L. Oppenheim,
London. Also appears as Chapter XIV of
the Manual of Military Law. War Office
1914.
Fed. Cases---
Federal Cases. Comprising cases argued
and determined in the circuit and district
courts of the United States. 1894.
For. Relations
Foreign Relations of the United States.
French Naval Instructions_ Instructions sur l'application du droit inter-
national en cas de guerre. · Dec. 19, 1913. .
In U. S. Naval War College Discussions,
international law topics, 1913.
Gallison__
Reports, Circuit Court United States, First
Circuit, 1812–1815. Boston, 1845, 2 vols.
German War Book-
The War Book of the German General Staff.
Being The Usages of War on Land,"
issued by the Great General Staff of the
German Army. Translated by J. H.
Morgan, New York, 1915.
Hall.---
W. E. Hall: A treatise on international law.
Fourth edition. Oxford, 1895.
Halleck...
H. W. Halleck; International Law. San
Francisco, 1861.
Higgins---
Higgins, Alexander Pearce: Hague peace
conference and other international confer-
ences concerning the laws and usages of
war; texts of conventions, with commen-
taries. N. Y., Putnam, 1909.
Holland
The Laws of War on Land. By Thomas
Erskine Holland. Oxford, 1906.
Institute -
Resolutions of the Institute of International
Law. Collected and translated by the Car-
negie Endowment for International Peace.
(Oxford University Press, 1916.)
Kent--
James Kent: Commentaries on American
Law. Thirteenth edition, edited by Charles
M. Barnes. Boston, 1884.
Latifi.
Latifi, Almá. Effects of War on Property.
London, Macmillan and Company, Limited,
1909.
Law Quarterly Review--- The Law Quarterly Review. London, Ste-
vens and Sons, Limited, 1885–1916. 32 vols.
Lawrence
T. J. Lawrence: The Principles of Interna-
tional Law. Fifth edition. Boston, 1913.
Lawrence, War and Neutrality Lawrence, Thomas Joseph: War and Neu-
in the Far East.
trality in the Far East. London, New York,
etc., Macmillan, 1904.
Lieber
Instructions for the Government of the Armies
of the United States in the Field, 1863.
. Moore's Digest
A Digest of International Law. By J. B.
Moore, Washington, 1906.
;
ABBREVIATIONS.
VII
Moore's International Arbitra- History and Digest of the International Arbi-
tions.
trations to which the United States Has
Been a Party. Washington, 1898. 6 vols.
Naval War College. Discussions_United States Naval War College. Interna-
tional Law Situations, Topics and Discus-
sions. 1901–1914. 14 volumes.
Op. Atty. Gen.
_.Official Opinions of the Attorneys General of
the United States, 1789. 1852.
Oppenheim.-
LL. Oppenheim : International Law. Vol. II. .
War and Neutrality. Second edition. Lon-
don, 1912.
Peters
Cases in the Supreme Court of the United
States, 1828–1842. 16 vols.
Phillimore_
Phillimore, Sir Robert: Commentaries upon
International Law. Third edition. Lon-
don, Butterworths, 1879.
Phillipson
Phillipson, Coleman. Effect of War on Con-
tracts. London, Stevens and Haynes, 1909.
Ralston.
Ralston, Jackson H. International Arbitrar
Law and Procedure. Boston, Ginn and Co.,
1910.
Reports to the Hague Conferences_.Reports to the Hague conferences of 1899
and 1907. ... Oxford, Clarendon press,
1917. At head of title: Carnegie Endow-
ment for International Peace.
Scott
Scott, James Brown, Cases on International
Law. ... St. Paul, West pub. Co., 1906.
961 p.
Spaight---
Spinks Prize Cases__
Stowell and Munro....
Taylor --
-War Rights on Land. By J. M. Spaight.
London, 1911.
Prize Cases. Reports of cases in the Ad-
miralty prize court and the court of appeal.
London, 1856.
Stowell, Ellery C., and Munro, Henry F.
International Cases, Arbitrations and Inci-
dents Illustrative of International Law as
Practiced by Independent States. Vol. I,
Peace. Vol. II, War and Neutrality. Cam.
bridge, Houghton Mifflin Company, 1916.
Taylor, Hannis. International Public Law.
Callaghan and Company, 1901 .
Trotter, William Finlayson. Law of Contract
During War. London, William Hodge and
Company, 1914.
Also supplement, London, William Hodge
and Company, 1915.
U. S. Supreme Court Reports.
Rules of Land Warfare. War Department,
Document 467, Office of the Chief of Staff.
Washington, 1914.
Cases in the Supreme Court of the United
States, 1863-1874. 23 vols.
John Westlake: International Law, Part II,
War, second edition. Cambridge, 1913.
Trotter
U. S.--.
U. S. Manual__
Wall__
Westlake
VIII
ABBREVIATIONS,
Wharton's Digest -
Wheat.
Wheaton.-
Wharton, Francis. A digest of the interna-
tional law of the United States. 3 volumes.
Washington, Government Printing Office,
1887. 2d edition.
Cases in the Supreme Court of the Uniteci
States. 12 vols.
Henry Wheaton: Elements of International
Law. Eighth edition, edited with notes by
Richard Henry Dana. Boston, 1866.
Theodore Dwight Woolsey : Introduction to
the Study of International Law. Sixth edi-
tion. Revised by Theodore Salisburg
Woolsey. New York, 1908.
Yale Law Journal. Vol. XXVII, no. 2, De-
cember, 1917. Picciotto, Cyril M. Alien
Enemy Persons, Firms, and Corporations in
English Law.
Woolsey-
Yale Law Journal.
1
COMMENCEMENT OF WAR.
THE CONTRACTING POWERS RECOGNIZE THAT HOSTILITIES BE-
TWEEN THEMSELVES MUST NOT COMMENCE WITHOUT PREVI-
OUS AND EXPLICIT WARNING, IN THE FORM EITHER OF A
REASONED DECLARATION OF WAR OR OF AN ULTIMATUM WITH
CONDITIONAL DECLARATION OF WAR.
-Article 1, Hague Convention 111, 1907.
Report to the Conference from the Second Commission on Opening of
Hostilities.
The Russian programme contains the following topic:
Additions to be made to the provisions of the Convention of 1899 relative to
the laws and customs of war on land—besides others, those concerning: the
opening of hostilities and the rights of neutrals on land.
It was the duty of the Second Commission to study this part of the
programme; the present report, however, deals only with 'the open-
ing of hostilities.'
The question whether there is an obligation upon a Government
intending to make war to give notice to its adversary before begin-
ning hostilities has been discussed for years and has given rise not
only to lengthy theoretical expositions but also to frequent recrimi-
nations between belligerents. It would be a vain task, from the point
of view that we must take here, to review the practice in the various
wars since the beginning of the last century in an effort to determine
whether there is, according to positive international law, any rule on
this subject. We have only to ask ourselves whether it is advisable
to lay one down, and if so, in what terms.
As to the first point, there can be no doubt. It is clearly desirable
that the uncertainty seen in various quarters should cease. Every-
body is in favor of an affirmative answer to the first question placed
before us by the president of the second subcommission, his Excel-
lency Mr. Asser, in his questionnaire.
The subcommission has had before it a proposition of the French
delegation, and an amendment thereto, offered by the Netherland
delegation. The proposition and its amendment were alike in requir-
ing a warning to be given before opening hostilities and also a no-
tification to neutrals. The difference between them lay in the interval
between the warning and hostilities, which the Netherland delega-
1
2
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tion proposed to fix definitely. Some special questions have also
been raised regarding the notification to neutrals. We shall give you
an explanatory statement on these several points.
The French proposition was worded as follows:
ARTICLE 1.
The contracting Powers recognize that hostilities between themselves must
not commence without a previous and explicit warning, in the form either of a
reasoned declaration of war or of an ultimatum with conditional declaration
of war.
ARTICLE 2.
The existence of a state of war must be notified to the neutral Powers with-
out delay.
The main provision of this proposal, which was inspired by a
resolution passed by the Institute of International Law at its meet-
ing at Ghent in September, 1906, is easily justified. Two distinct
cases are provided for. When a dispute occurs between two States,
it will ordinarily lead to diplomatic negotiations more or less lengthy,
in which each party attempts to have its pretensions recognized, or
at least to secure partial satisfaction. If an agreement is not reached,
one of the Powers may set forth in an ultimatum the conditions
which it requires and from which it declares it will not recede. At
the same time it fixes an interval within which a reply may be made
and declares that, in the absence of a satisfactory answer, it will have
recourse to armed force. In this case there is no surprise and no
equivocation. The power to which such an ultimatum is addressed
can come to a decision with a full knowledge of the circumstances;
it may give satisfaction to its adversary or it may fight.
Again, a dispute may arise suddenly, and a Power may desire to
have recourse to arms without entering upon or prolonging diplo-
matic negotiations that it considers useless. It ought in that case to
give a direct warning of its intention to its adversary, and this warn-
ing ought to be explicit.
When an intention to have recourse to armed force is stated con-
ditionally in an ultimatum, a reason is expressed, since war is to be
the consequence of a refusal to give the satisfaction demanded. This
is, however, not necessarily the case when the intention to make war
is made manifest directly and without a previous ultimatum.
The proposal set out above requires that reasons be assigned in
this case also. A Government ought not to employ so extreme a
measure as a resort to arms without giving reasons. Every one, both
in the countries about to become belligerents, and also in neutral coun-
tries, should know what the war is about in order to form a judg-
ment on the conduct of the two adversaries. Of course this does not
mean that we are to cherish the illusion that the real reasons for a
COMMENCEMENT OF WAR.
3
war will always be given; but the difficulty of definitely stating rea-
sons, and the necessity of advancing reasons not well substantiated
or out of proportion to the gravity of war itself, will naturally ar-
l'est the attention of neutral Powers and enlighten public opinion.
The warning should be previous in the sense of preceding hos-
tilities. Shall a given length of time elapse between the receipt of
the warning and the beginning of hostilities? The French prop-
osition specifies no interval, which implies that hostilities may begin
as soon as the warning has reached the adversary. The time limita-
tion before war is begun is thus less determinable than in the case
of an ultimatum. In the opinion of the French delegation the neces-
sities of modern warfare do not allow of a requirement that the
party desiring to take the aggressive should grant further time than
what is absolutely indispensable to let its adversary know that force
is to be employed against it.
The principle of the French proposal met with no objection and
the text was voted almost unanimously by the subcommission, after
the delegations of Germany, Great Britain, Japan, and Russia had
expressly declared themselves in accord with it.
The delegation of the Netherlands desired to supplement the prin-
ciple as follows:
The contracting Powers recognize that hostilities between themselves must
not commence until the lapse of twenty-four hours after an explicit warning,
having the form of a reasoned declaration of war, or of an ultimatum with
conditional declaration of war, has officially come to the attention of the ad-
versary's Government.
The difference between this and the French proposal lies in re-
quiring a fixed interval between the receipt of the warning and the
opening of hostilities. The need for this delay was explained by
Colonel Michelson, speaking for the Russian delegation, in these
words:
+
The problem of such a delay is intimately connected with the relation which
exists between the peace and war establishments of every country. Conse-
quently a result of its adoption would be a more or less considerable reduction
of expenditures. The time may not be so far distant after all when we shall
be able to distinguish between the troops and other preparations for war which
every country in its own sovereign judgment deems requisite in its political
situation, and those that it is compelled to maintain only through the necessity
of being constantly in readiness for fighting. By establishing a certain interval
between the rupture of peaceful relations and the beginning of hostilities,
an opportunity would be afforded to such countries as may desire it to realize
certain economies during times of peace. It is undeniable that these economies
would be beneficial in every way, and could not fail to bring about a great re-
lief from the burden of peace armies, a relief all the more acceptable because
it would in no way affect the right of each nation to fix its own forces and
armament solely in accordance with its own views and needs.
4
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
There is still another advantage to be derived from the proposed delay. It
would leave to friendly and neutral Powers some precious time which they
could use in making efforts to bring about a reconciliation, or to persuade the
disputants to submit their causes of difference to the high Court of Arbitra-
tion here. But, while speaking of this subject of a delay, we must not lose
sight of what is at present possible. The idea of any considerable delay is
not yet developed in the consciences of the people of the nations. Conse-
quently it would perhaps not be wise to go too far with our desires, in order
that we may not get beyond what is really possible in practice at the present
day. So let us content ourselves with accepting the delay of twenty-four
hours which has been proposed by the delegation of the Netherlands. Let us
leave to the future the work of the future, and' merely express our hope that
in the future the benefits of a still longer delay will be secured.
While the force of this reasoning is undeniable, it did not convince
the majority of the subcommission. It did not appear consistent
with military exigencies of the present day to fix such an interval; a
great advance is gained, however, in securing the admission of the
need of a previous warning. Let us hope that in the future we shall
make a further advance; but let us not proceed too rapidly. It is
noteworthy that the Institute of International Law, in its resolution
referred to above, considered that it could not go so far as to suggest
a definite interval, although in such a matter as this an assembly of
jurists might be expected to be less conservative than an assembly
of diplomatists and military and naval men. It limited itself to
saying: 'Hostilities shall not commence before the expiration of a
delay sufficient to make it certain that the rule of previous and
explicit notice can not be considered as evaded.'
An obligation to make a declaration of war include the reasons
therefor awakened some scruples as being contrary to provisions in
some constitutions. Thus the Cuban delegates made the following
statement: 'In view of the fact that paragraph 12 of Article 59
of the constitution of Cuba mentions among the powers of Congress
that of declaring war, it is not possible for the delegation to subscribe
to any act that does not reserve to our Congress the right to deter-
mine the form and conditions of such a declaration. On the other
hand, General Porter declared that the French proposal was not in-
consistent with the provisions of the American federal constitution,
under which Congress has the power to declare war.
Indeed, there seems to be some misunderstanding on this point.
We should make a distinction between two acts that are often con-
fused because the same expression is used to describe both: namely,
the act of deciding on war and the act of communicating this deci-
sion to the adversary. According to the constitutions the decision
belongs to the sovereign or head of the State, either acting alone or
in conjunction with the representatives of the people; but the noti-
fication is essentially for the executive. Since the notification closely
follows the decision, they are combined under the term declara-
COMMENCEMENT OF WAR.
5
tion, and this is especially the understanding where there is exter-
nally only one sovereign act. Bearing this in mind, it is easily
shown, that the French proposition voted by the subcommission is
not at all inconsistent with constitutional provisions of the kind indi-
cated. The liberty of a congress to decide on war in whatever way
it chooses is not touched. Can it be supposed that war will be deter-
mined upon lightly, even though the formal resolution may not indi-
cate the reasons, and is it too much to ask of a Government which, in
execution of such a decision, declares war that it give its reasons
therefor? We do not think so.
According to the second article of the French proposal, “the ex-
istence of a state of war must be notified to the neutral Powers with-
out delay'. As a matter of fact, war not only modifies the relations
existi between belligerents, but it also seriously affects neutral
States and their citizens; it is therefore important that these be
given the earliest possible notice. It is hardly to be supposed that,
with the present rapid spread of news, much time will elapse before
it is everywhere known that a war has broken out, or that a State
will be able to invoke its ignorance of the existence of a war in
order to evade all responsibility. But as it is possible, in spite of
telegraph and cable lines and radiotelegraphy, that the news might
not of itself reach those concerned, precautions must be taken. Ac-
cordingly two amendments were offered. The first, from the Bel-
gian delegation, was as follows: "The existence of a state of war
must be notified to the neutral Powers. This notification, which
may be given even by telegraph, shall not take effect in regard to
them until forty-eight hours after its receipt.' The other, offered by
the British delegation, in an article contained in a proposal sub-
mitted to the Third Commission and referred to this subcommission,
said: 'A neutral State is bound to take measures to preserve its
neutrality only when it has received from one of the belligerents a
notification of the commencement of the war.'
The Belgian amendment was intended merely to put neutral
States in a position to discharge their obligations, but as it might
be differently interpreted, if taken literally, it was modified. It did
not, however, even as amended, receive the approval of the Com-
mission.
The view which has been adopted is that it is impracticable to fix
any delay. The governing idea is a very simple one. A State can
be held to duties of neutrality only when it is aware of the exist-
ence of the war creating such duties. From the moment when it is
informed, no matter by what means (provided there is no doubt of
the fact) it must not do anything inconsistent with neutrality. Is
it at the same time obliged to prevent acts contrary to neutrality
that might be committed on its territory? The obligation to do so
6
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
presupposes the ability. What can be required of a neutral Govern-
ment is that it take the necessary measures without delay. The
interval within which the measures can be taken will vary, nat-
urally, according to circumstances, extent of territory, and facility
of communication. The interval of forty-eight hours, as was pro-
posed, might be, in a given case, too long or too short. There is no
need of establishing a legal presumption that the neutral is or is
not responsible. It is a question of fact which can be determined
usually but with little difficulty.
The subcommission therefore confined itself to the following draft:
The existence of a state of war must be notified to the neutral Powers
without delay, and shall not take effect in regard to them until after the
receipt of a notification, which may, however, be given by telegraph.
In the committee of examination it was pointed out that the rule
phrased in this way is too positive, since it implies that a neutral
Government which through some circumstance or other had not
received the notification provided for, even though it is unquestion-
ably aware of the existence of a war, could evade all responsibility
for its acts, simply by relying on the absence of a notification. The
essential point would seem to be that a Government must be aware
of the existence of a state of war in order to take necessary measures.
Proof is easy when a notification is given; but if there has been no
notification, the belligerent who complains of a violation of neu-
trality must clearly establish that the existence of the war was with
certainty known in the country where the alleged unlawful acts took
place. After a discussion the majority of the committee decided to
add the following clause:
However, it is understood that neutral Powers can not rely on the absence
of notification if it is clearly established that they were in fact aware of the
existence of a state of war.
This text was accepted by the Commission and seems to take all
interests sufficiently into account.
It has been asked what form ought to be given to the provisions
thus adopted. Shall they be placed in a special convention or declara-
tion? or shall they be embodied in the Regulations of 1899 on the
laws and customs of war on land? Without wishing to trespass on
the field of the drafting committee, it is proper to say that the latter
mode may be dismissed from consideration since the provisions are
of a general character applying to naval war as well as to war on
land. Besides, provisions respecting the duties of neutrals do not
ordinarily fall within the scope of regulations intended to serve as
instructions for troops. We might consider combining all the provi-
sions concerning neutrals adopted by the Second and Third Commis-
sions; but it should be borne in mind that our Article 2 is closely
COMMENCEMENT OF WAR.
7
related to Article 1 and ought not to be separated from it. The draft-
ing committee, however, will have the final decision.
We have the honor, therefore, to submit to the Conference the two
following propositions:
ANNEX 1.
Draft of Regulations relating to the Opening of hostilities.
Text submitted to the Conference.
ARTICLE 1.
The contracting Powers recognize that hostilities between themselves must
not commence without a previous and explicit warning, in the form either of
a reasoned declaration of war or of an ultimatum with conditional declara-
tion of war.
ARTICLE 2.
The existence of a state of war must be notified to the neutral Powers with-
out delay, and shall not take effect in regard to them until after the receipt
of a notification, which may, however, be given by telegraph. However, it is
understood that neutral Powers can not rely on the absence of notification if
it is clearly established that they were in fact aware of the existence of a
state of war.
ANNEX 2.
Questionnaire prepared by His Excellency Mr. T. M. C. Asser, president of
the second subcommission of the Second Commission, to serve as a basis
for discussion.
1. Is it desirable to establish an international understanding relative to
the opening of hostilities? (On the supposition of an affirmative response to
this question :)
2. Is it best to require that the opening of hostilities be preceded by a
declaration of war or an equivalent act?
3. Is it best to fix upon a time which must elapse between the notification
of such an act and the opening of hostilities?
4. Should it be stipulated that the declaration of war or equivalent act
be notified to neutrals?
And by whom?
5. What should be the consequences of a failure to observe the preceding
rules?
6. What is the diplomatic form in which it is best to set out the under-
standing?
ANNEX 3.
Proposal of the Netherland Delegation, amendments to the proposal of the
French Delegation,
ARTICLE 1.
The contracting Powers recognize that hostilities between themselves must
not commence until the lapse of twenty-four hours after an explicit warning,
having the form of a reasoned declaration of war, or of an ultimatum with
8
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
conditional declaration of war, has officially come to the attention of the ad-
versary's Government.
ARTICLE 2.
The existence of a state of war must be notified to the neutral Powers with-
out delay, and shall not begin with regard to them until after the notification
thereof has officially come to their attention.
Reports to the Hague Conferences, pp. 502-508.
Convention No. 3. The Commencement of Hostilities.
The report of the Second Committee on the opening of hostilities
was presented by M. Renault at the 5th Plenáry Meeting of the
Conference. It emanated from an Examining Committee of eighteen
members.
There are few subjects connected with the laws of war on which a
greater amount of divergence has appeared in the writings of pub-
licists than the necessity for a declaration of war preceding the out-
break of hostilities; it has also led to frequent recriminations among
belligerents. Russia accused Japan of gross treachery because her
torpedo-boats attacked their warships at Port Arthur before a formal
declaration of war had been made, a charge which was embodied in
a Circular of Count Lamsdorff on the 22nd Feb. 1904 to the Russian
diplomatic representatives at foreign courts. It is unnecessary to
enter into a detailed examination of the practice of states and the
theories of writers on this matter. General Maurice in his work on
this subject which was published in 1883 examines the commence-
ments of the wars that had taken place from 1700 to 1872, and during
this period he found that less than 10 cases had occurred in which an
actual declaration of war, prior to hostilities, had been made. In
his article on this subject in the Nineteenth Century and after (April,
1904) he points out that the practice of not issuing a preliminary
declaration was common to all the great Powers:
Numerically, within the time I more particularly examined, Britain struck
thirty of these blows, France thirty-six, Russia seven (not reckoning her
habitual practice towards Turkey and other bordering Asiatic States, including
China), Prussia seven, Austria twelve, the United States five at least."
In modern times there has been a tendency to revert to the older
order of procedure under which a formal defiance was made before
the outbreak of hostilities. The Franco-German War, 1870, and the
Russo-Turkish War, 1877, both commenced with a formal declara-
tion, while in the case of the Spanish-American War, 1898, and the
Boer War, 1899, ultimatums, which are forms of conditional declara-
tion, were presented.
Amongst this diversity of theory and practice one rule emerged
with clearness, namely that "an attack which nothing had fore-
shadowed would be infamous.” A gross violation of international
COMMENCEMENT OF WAR.
9
commence war.
law would be committed by the commencement of hostilities in time
of peace without a previous controversy and negotiations with a view
to a peaceful settlement.
The Committee wisely refrained from a definite pronouncement
as to whether there was a positive rule of international law on the
subject; “ we have,” they reported, “only to ask ourselves whether
it is advisable to establish one and in what terms." To the first part
of this question an affirmative answer was returned. The Committee
took as its basis for discussion a proposition of the French delegate,
with amendments proposed by the Dutch and Belgian Delegations.
The French proposal was based on the resolutions passed by the
Institut de Droit International at its meeting at Ghent in September,
1906, when, after a careful examination of the whole question, the
following rules were adopted.
(1) It is in accordance with the requirements of International Law, and
with the spirit of loyalty which nations owe to each other in their mutual
relations, as well as in the common interest of all states, that hostilities should
not commence without previous and unequivocal notice.
(2) This notice may take the form of a declaration of war pure and simple,
or that of an ultimatum, duly, notified to the adversary by the state about to
.
(3) Hostilities should not begin till after the expiry of a delay sufficient
to ensure that the rule of previous and unequivocal notice may not be con-
sidered as evaded.
Article 1 of the French draft embodied rules 1 and 2 adopted by
the Institut and was framed in the words which now form Article 1
of this Convention. The object of the proposal was to prevent an
attack by one Power on another by surprise. The reasons to be given
in the declaration are required because “Governments ought not to
have recourse to such an extreme measure without giving reasons.
Everyone, whether citizens of the countries about to become belliger-
ents or of neutral states, ought to know why there is to be a war in
order to judge of the conduct of the two adversaries. We, of course,
do not cherish the illusion that the real reasons for a war will always
be given; but the difficulty of definitely stating reasons, the necessity
of advancing those which have no foundation or are out of propor-
tion to the gravity of war, will naturally have the effect of attracting
the attention of neutral states and of enlightening public opinion.”
There was no opposition to the principle of the French proposal, but
difficulties of a constitutional order were raised by the Delegations
of the United States and Cuba; on further consideration, however,
these were seen to be avoided by the form in which the proposition was.
introduced.
The amendment of General den Beer Poortugael, the Dutch pleni-
potentiary, was proposed with the object of modifying Article 1 by
110678--19
-2
10
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
providing that hostilities should not commence until the lapse of
24 hours from the time when an unequivocal declaration of war ac-
companied by reasons, or an ultimatum with a conditional declaration
of war had been received by the government of the adversary. This
was supported by Colonel Michelson on behalf of Russia on the
ground that if a definite period was recognized it would enable a state
to make certain economies, and to this extent might be a step towards
the reduction of the military burdens of states which would then
not feel the necessity of always keeping their establishments on a
war footing and ready for instant mobilization: and furthermore it
would provide an opportunity for neutral Powers to employ their
efforts at bringing about a reconciliation. The Dutch amendment was
rejected by 16 to 13, with 5 abstentions. The discussions appear only
to have dealt with the question from the point of view of land war-
fare. The position of armies is invariably well-known but the delay
of 24 hours, by enabling a change in the position of naval forces,
the whereabouts of which are frequently matters of conjecture, might
have most important consequences in the initial stages of belligerent
operations.
The second Article of the French draft provided that “the state of
war must be notified without delay to neutral Powers." The Belgian
delegate proposed to add that the notification might be made even
by telegraph, and should only take effect as regards neutral Powers
forty-eight hours after its receipt. It was felt that this might have
been interpreted as permitting neutrals to act during this period in a
way contrary to the principles of neutrality, and the amendment was
rejected. The proposal that notification might be made by telegraph
was accepted, and the Committee added the last sentence of Article
1 to meet the possible case of a neutral failing to receive notification.
The mere absence, therefore, of official notification will not exonerate
a neutral Power from the performance of its duties if it can be shown
that it was actually aware of the existence of war. It has for many.
years been the practice of belligerents to issue notifications to neu-
trals at the commencement of war; the contracting Powers now
formally accept the obligation to do so. The importance of notifica-
tion is apparent both as regards the general principles of neu-
trality, and the freedom from capture of belligerent ships ignorant
of the outbreak of war.
The Convention is a useful contribution to the rules of Interna-
tional Law. By Article 1 the contracting Parties recognize that they
are now under an obligation to each other to issue an absolute or
conditional declaration before the commencement of hostilities,
whatever differences of opinion on this point may previously have
existed. But although the contracting Powers have agreed on a rule
that hostilities are not to commence without previous warning, they
COMMENCEMENT OF WAR.
11
66
have not precluded the possibility of a surprise attack, for the Con-
ference rejected the Dutch proposal for the very limited delay of
twenty-four hours between the presentation of the declaration and
the outbreak of hostilities. “No forms give security against disloyal
conduct."
The Chinese delegate put two very pertinent questions during the
discussions. He asked for a definition of war, as distinct from
military expeditions," and he also desired to know what was to
happen if a state against which war was declared did not wish to
fight: no answer appears to have been made to these enquiries. The
difficulty of distinguishing between non-belligerent and belligerent
action in cases of reprisals and pacific blockade (“ war sub modo").
was not considered by the Committee. The practice of states, however,
enables definite conclusions to be drawn with regard to the second
point, and a state not wishing to resist would find itself subjected to
all the consequences of a state of belligerency.
This Convention has been signed by all the states enumerated in
the Final Act except China and Nicaragua.
Higgins, pp. 202–205.
!
After the peace of Versailles, in 1763, formal declarations of war
of
any
kind seem to have been discontinued, and all the necessary
and legitimate consequences of war flow at once from a state of public
hostilities, duly recognized and explicitly announced by a domestic
manifesto or state paper. In the war between England and France,
in 1778, the first public act on the part of the English government was
recalling its minister; and that single act was considered by France
as a breach of the peace between the two countries. There was no
other declaration of war, though each government afterwards pub-
lished a manifesto in vindication of its claims and conduct. The
same thing may be said of the war which broke out in 1793, and again
in 1803; and, indeed, in the war of 1756, though a solemn and formal
declaration of war, in the ancient style, was made in June, 1756,
vigorous hostilities had been carried on between England and France
for a year preceding. In the war declared by the United States
against England, in 1812, hostilities were immediately commenced
on our part as soon as the act of Congress was passed, without waiting
to communicate to the English government any notice of our inten-
tions.
Kent, vol. I, pp. 66, 67.
But though a solemn declaration, or previous notice to the enemy,
be now laid aside, it is essential that some formal public act, proceed-
ing directly from the competent source, should announce to the people
at home their new relations and duties growing out of a state of war,
12
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
and which should equally apprise neutral nations of the fact, to en-
able them to conform their conduct to the rights belonging to the
new state of things. “War,” says Vattel,“ is at present published and
declared by manifestoes. Such an official act operates from its date
to legalize all hostile acts, in like manner as a treaty of peace operates
from its date to annul them. As war can not lawfully be commenced
on the part of the United States without an act of Congress, such an
act is, of course, a formal official notice to all the world, and equiva-
lent to the most solemn declaration."
Kent, vol. I, p. 67; Vattel, b. 3, c. 4, sec. 64.
Former practice.
It was customary, in former times, to precede hostilities by a pub-
lic declaration, communicated to the enemy. This was always done
by the ancient Greeks and Romans. The latter first sent the chief of
the feciales, called the pater-patratus, to demand satisfaction of the
offending nation; and if, within the space of thirty-three days, no
satisfactory answer was returned, the herald called the gods to wit-
ness the injustice, and came away, saying that the Romans would
consider upon the measures to be adopted. The matter was then
referred to the senate, and, when the war was resolved on, the herald
was sent back to the frontier to make declaration in due form. In-
vasions, without such public notice, were looked upon as unlawful,
and no nation was regarded as an enemy of the Roman people until
war was thus publicly declared against it.
During the
middle ages, and even as late as 1635, a declaration of war to the
enemy, previous to beginning hostilities, was generally made, and,
indeed, was required by the laws of honor and chivalry.
The latest example of a public declaration to the enemy
was that of France against Spain, at Brussels, in 1735, by heralds at
arms, according to the forms observed during the middle ages.
Halleck, pp. 351, 352.
Modern practice.
In modern times, the practice of a formal declaration to the enemy
has fallen into entire disuse, the belligerents limiting themselves to
a public declaration within their own territories and to their own
people.
For a long time, however, writers on public law were divided in
opinion with respect to the propriety of the modern practice of com-
mencing war without any formal declaration to the enemy. Grotius,
Puffendorf, Valin, Emerigon and Vattel, think that such declaration
should be made, while Bynkershoek, Heniccius, and more recent
writers, maintain that, although such declaration may very properly
be made, yet it cannot be required as a matter of right.
COMMENCEMENT OF WAR,
13
There is nothing in international jurisprudence, as now practiced,
to render such declaration obligatory, and the present usage entirely
dispenses with it.
Halleck, p. 352.
There should be some manifesto, declaration, or publication made
within the territory of the state which declares the war, announcing
the existence of hostilities; and such inanifesto, or publication, usually
sets forth the motives for commencing the war.
Halleck, p. 352.
Exceptions.
Notwithstanding a very general accordance, in modern wars, with
the doctrine of unilateral declaration, there are quite a number of in-
stances where wars between the most civilized nations have been
commenced and carried on without a formal declaration of any
kind. But these instances have generally resulted from peculiar cir-
cumstances, which rendered, or seemed to render, a public declara-
tion unnecessary or inconvenient; they are, therefore, exceptions to
the general rule established by modern usage.
Halleck, p. 354.
Effect of failure to declare war.
Even admitting the views of Hautefeuille, that such wars are vio-
lations of the law of nations, so far as concerns the failure to make
a formal declaration, it will hardly be contended that all the bellig-
erent acts of the parties during the continuance of the war, are, of
consequence, illegal and violations of international jurisprudence.
Halleck, p. 354.
When war legally begins.
[In case of the prosecution of war without a preceding declaration,]
the legitimate consequences of war flow directly from the state of
public hostilities, and * the effects which the voluntary law of nations
attributes to solemn war date, with respect to belligerent rights, from
the commencement of such hostilities.
Halleck, p. 354.
*
*
Kinds of declarations.
Declarations of war may be either absolute or conditional. Hos-
tilities result at once from the former,
[while in the latter
case] the demand of the one power upon the other may be
accompanied by a notification that hostilities will be commenced un-
14
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
less satisfaction upon some matter specified be obtained immediately,
or within a certain limited time. In this case the war dates from
commencement of hostilities.
Halleck, p. 355.
Defensive war.
Although Vattel strenuously insists upon the ancient rule, that
the declaration of war must, in general, be communicated to the state
against which it is made, he makes the case of a war strictly defensive
an exception. He who is attacked, he says, and wages only a defen-
sive war, need not make a formal declaration, as the state of war is
sufficiently determined by the declaration or conduct of the enemy.
Nevertheless, the nation which is attacked seldom omits to make
such declaration, either from a sense of its own dignity, or for the in-
formation of its own subjects and of neutral states. It has already
been shown that modern usage does not absolutely require a formal
declaration in any case, ex debito justitiae inter gentes, although some
public act, recognizing the existence of the war, may be required by
public or municipal law, in order to determine the duties and relations
of the subjects of the belligerents. Such recognition seems as neces-
sary in a defensive as in an offensive war. Thus, when Sweden, in
1812, had declared war against Great Britain, and the British govern-
ment had neither issued a counter-declaration nor caused any official
declaration to be made to its own subjects, Sir William Scott said
it might be a question of nicety to determine how far the Swedish
proclamation “would affect the rights of British subjects to carry on
their accustomed intercourse with the ports of Sweden."
Halleck, p. 356; The Success, 1 Dodson, 133.
[A precedent declaration is not] necessary to legalize hostilities;
and by modern usage, it is sometimes dispensed with, and the war
commenced without any public notice or warning.
Halleck, p. 369.
Not only reprisals, but acts of more positive aggression, under the
sanction and authority of the government, sometimes precede the
declaration of war, and are covered by its retroactive effect.
Again, in other cases, no declaration or manifesto is ever issued,
or, if issued at all, it merely recognizes the war, as that between
the United States and Mexico, to be an existing fact. Where
the government itself has fixed no positive time for the commence-
ment of hostilities, either past or future, and where its intentions are
at all doubtful, the conduct of individuals is entitled to a lenient and
favorable construction. A court will not, in such cases, condemn
property as involved in trade with the enemy, unless fully satisfied,
COMMENCEMENT OF WAR.
15
not only that hostilities existed, but that the fact was so public and
notorious that the knowledge of its existence was justly to be imputed
to the parties by whom the acts of supposed illegality were com-
mitted or authorized. It would be plainly unjust to confiscate prop-
erty, or annul contracts, where reasonable doubts exist, either as to
the intentions of the government, or the knowledge of the parties.
Halleck, pp. 369, 370.
A formal declaration of war to the enemy was once considered
necessary to legalize hostilities between nations. It was uniformly
practiced by the ancient Romans, and by the States of modern Europe
until about the middle of the seventeenth century. The latest example
of this kind was the declaration of war by France against Spain, at
Brussels, in 1635, by heralds at arms, according to the forms observed
during the middle age. The present usage is to publish a manifesto,
within the territory of the State declaring war, announcing the exist-
ence of hostilities, and the motives for commencing them. This pub-
lication may be necessary for the instruction and direction of the
subjects of the belligerent State in respect to their intercourse with
the enemy, and regarding certain effects which the voluntary law of
nations attributes to war in any form. Without such a declaration,
it might be difficult to distinguish in a treaty of peace those acts
which are to be accounted lawful effects of war, from those which
either nation may consider as naked wrongs, and for which they may,
under certain circumstances, claim reparation.
Wheaton, pp. 375–378.
So also in the Middle Ages, war could not be honorably begun
without a declaration; but the spirit which dictated this, seems to
have been, as Mr. Ward remarks, rather a knightly abhorrence of
everything underhanded and treacherous, than a desire to prevent
the effusion of blood by giving the enemy time to repair his fault.
Even in the private warfare which characterized that age, as much
as in the duel, a challenge or formal notice to the enemy was neces-
sary. The declaration of war was made by heralds or other mes-
sengers: that of Charles V. of France against Edward III., was
carried to that king by a common servant, the letter containing it
bearing the seals of France. Such formal challenges were sanc-
tioned by law. Thus the public peace of the Emperor Barbarossa,
in 1187, contains the clause that an injured party might prosecute
his own rights by force, provided he gave to his adversary three
days' notice that he intended to make good his claims in open war.
And the Golden Bull of the Emperor Charles IV. in 1356, forbids
invasions of the territory of others on pretext of a challenge unless
the same had been given for three natural days to an adversary in
16
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
person, or publicly made known before witnesses at his usual place
of residence; and this, on pain of infamy, just as if no challenge had
been offered.
The modern practice ran for some time in the same direction, but
since the middle of the eighteenth century formal declarations have
not been made extensively, and are falling into disuse. Instances of
the same may be gathered from still earlier times. Thus no declara-
tion preceded the expedition of the Grand Armada in 1588,-before
which indeed a state of hostilities existed in fact,-and the war
between England and Holland, in 1664, began with an act of the
English Council, authorizing general reprisals, which became a
full-blown war without any declaration. Thus also in the Seven
Years' War hostilities began on this continent between England and
France two years before the parties to this important war made their
declarations.
This disuse of declarations does not grow out of an intention to
take the enemy at unawares, which would imply an extreme degrada-
tion of moral principle, but out of the publicity and circulation of
intelligence peculiar to modern times. States have now resident am-
bassadors within each other's bounds, who are accurately informed
in regard to the probabilities of war, and can forewarn their coun-
trymen.. War is for the most part the end of a long thread of nego-
tiations, and can be generally foreseen. Intentions, also, can be
judged of from the preparations which are on foot, and nations have
a right to demand of one another what is the meaning of unusual
armaments. It is, also, tolerably certain that nations, if they intend
to act insidiously, will not expose their own subjects in every quarter
of the globe to the embarrassments of a sudden and unexpected war.
And yet the modern practice has its evils, so that one can not help
wishing back the more honorable usage of feudal times.
This rule, be it observed, of declaring war beforehand, so long as
it was thought obligatory, only bound the assailant. The invaded
or defensive state accepted the state of war as a fact, without the
formalities of a declaration.
Woolsey, pp. 188–190.
The number of wars without declaration within the last three cen-
turies is quite considerable. Bynkershoek (u. s.) mentions the war of
Spain with the United Provinces—which, however, needed a declara-
tion the less as being a war between a sovereign and his subjects-
and that of Gustavus Adolphus with the Emperor Ferdinand II,
who complained that no declaration had been made, and received for
reply that the Emperor had before invaded Prussia without that
formality. Robert Ward, the historian of international law, has de-
voted to this matter of the commencement of wars an essay pub-
COMMENCEMENT OF WAR.
17
lished at London in 1805, which is, like the other works of this
author, excellent. In the historical part of the essay will be found
a considerable list of wars without a declaration.
In some of these cases, war may be said to have grown out of repri-
sals, without there being any moment of time when the one passed
into the other. In some cases, again, there was negligence, if not in-
tentional fraud, in not seeking to obtain justice before proceeding to
the ultima ratio. In some others the party acting on the defensive
took the first step, with the intention of getting an advantage over his
adversary, or the injured party delayed taking decisive steps until
after the other party had done a hostile act, in the hope of an accom-
modation.
But with all the looseness of practice in regard to declarations of
war, we find a claim made that prizes taken before a declaration
ought to be put on distinct grounds from those made afterwards. In
the war of Great Britain with France, in and after 1756, the latter
strove to make a difference between war in America and war in
Europe, and demanded the restoration of prizes in the European
waters. This was after the instructions to the British Admiral to
fight with the French fleet in America wherever he should find it,
were communicated to the French ambassador at London, and he had
replied that his King would regard the first gun fired as a declaration
of war.
On the whole, the great looseness of the eighteenth century, in
regard to the initial steps of war showed a want of honor, and
enabled certain wars, which were waged before redress was sought,
to appear the less worthy of condemnation.
Woolsey, pp. 191, 192.
But if a declaration of war is no longer necessary, a state which
enters into war is still bound (1) to indicate in some way, to the party
with whom it has a difficulty, its altered feelings and relations. This
is done by sending away its ambassador, by a state of nonintercourse,
and the like. (2) It is necessary and usual that its own people should
have information of the new state of things; otherwise their persons
and property may be exposed to peril. (3) Neutrals háve a right
to know that a state of war exists, and that early enough to adjust
their commercial transactions to the altered state of things; otherwise
a great wrong may be done them. [Their duties as neutrals date
from this official announcement of a state of war or other positive
knowledge of it.] Such notice is given in manifestoes.
pieces," says Vattel, “never fail to contain the justifying reasons,
good or bad, for proceeding to the extremity of taking up arms. The
least scrupulous sovereign would be thought just, equitable, and a
66 These
18
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
lover of peace; he is sensible that a contrary reputation might be
detrimental to him. The manifesto implying a declaration of
war, or the declaration itself, which is published all over the state,
contains also the general orders to his subjects relative to their con-
duct in the war."
[In practice, accordingly, at the beginning of a war, the belliger-
ents usually each issue a proclamation setting forth what privileges
they intend to allow neutrals and what duties they expect them to
observe. So, too, the neutrals publish proclamations laying down the
duties of their own subjects in view of the war commenced, inform-
ing them of the penalties of disobedience, and telling the belligerents
what privileges are granted them during the struggle. (Calvo, ii,
389.)]
Woolsey, pp. 192, 193; Vattel, Book iii, 4, § 64.
On the threshold of the special laws of war lies the question
whether, when a cause of war has arisen, and when the duty of
endeavoring to preserve peace by all reasonable means has been satis-
fied, the right to commence hostilities immediately accrues, or whether
it is necessary to give some preliminary notice of intention. A priori
it might hardly be expected that any doubt could be felt in the
matter. An act of hastility, unless it be done in the urgency of self-
preservation or by way of reprisal, is in itself a full declaration of
intention; any sort of previous declaration therefore is an empty
formality unless an enemy must be given time and opportunity to
put himself in a state of defence, and it is needless to say that no one
asserts such quixotism to be obligatory. Nevertheless a declaration
in some form is insisted upon by the majority of writers, and it has
sometimes been treated as being so essential to the justice of hostili-
ties that a neglect to issue one has supplied an excuse for a good dea
of unnecessary invective against one at least of the states which at
various times have dispensed with it.
Hall, p. 391.
Date of commencement of war.
The opinion that the date of the commencement of war must be
indicated by a formal notification appears to rest upon the idea that
without such a notification the date of commencement must be uncer-
tain. As between belligerents however--and the subject is being con-
sidered here solely as between belligerents--no uncertainty need exist.
The date of the commencement of a war can be perfectly defined by
the first act of hostility. A more real doubt used formerly to arise
from the very fact that declarations were commonly issued. In the
eighteenth century declarations were frequently published several
months after letters of marque had been granted, after general re-
COMMENCEMENT OF WAR.
19
prisals had been ordered, and even after battles had been fought;
and disputes in consequence took place as to whether war had begun
independently of the declaration, or from the date of the declaration,
or in consequence of the declaration, but so as to date, when once
declared, retrospectively to the time of the first hostilities. As the
legitimacy of the appropriation of private property depends upon
the existence of a state of war, it is evident that conflicts of this
nature were extremely embarrassing and, where different theories
were in play, were altogether insoluble. To take the state of war
on the other hand as dating from the first act of hostility, only leads
to the inconvenience that in certain cases, as for example of interven-
tion, a state of war may be legally set up through the commission of
acts of hostility, which it may afterwards appear that the nation
affected does not intend to resent by war; and, as in such cases the
nation doing hostile acts can always refrain from the capture of
private property until the question of peace or war is decided, the
practical inconvenience is small.
Hall, pp. 391, 392.
Early custom.
It may be suspected that the writers who in recent times have main-
tained the necessity of notification of some kind have been uncon-
sciously influenced by the merely traditional force of ideas which
belong to a period anterior to international law, and which are of
little value under the conditions of modern war. During the middle
ages, and down to the sixteenth century, direct notice of war was
always given to an intended enemy, in the earlier times by letters
of defiance, and latterly by heralds. Whether the practice had a
distinct origin, or whether it descended from the fetial law of the
Romans, is immaterial; it was at any rate of undisputed authority,
and, owing to the way in which war was then made, it was of great
value in its time. When therefore it began to die away in the transi-
tion from mediaeval to modern civilization, it is not surprising that
the conception of right which it had so long embodied should reap-
pear in another shape; and it happened that by leaning on natural
law and on the growing authority of Roman custom it was able to
secure vigorous allies. The practice of sending heralds was disused
in the beginning of the seventeenth century, but Albericus Gentilis
had already cited Roman usage in support of the assertion that the
voice of God and Nature ordered men to renounce friendship expressly
before embarking in war; and Grotius, though seeing clearly that
express notification is useless, when it is once understood that demands
made on one side will not be granted on the other without war,
allowed himself in describing the conditional declaration' which
he held to be commanded by natural law, to be tied down by ancient
20
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
precedent, and especially by fetial forms, to a demand for reparation
coupled with notice of war in case of non-compliance. Zouch, in lay-
ing down that declaration is necessary, relies only upon fetial law.
Pufendorf barely states that war must be duly proclaimed; but if
the language of his predecessors be kept in mind, there can be little
doubt as to the intention of his doctrine. Cocceius regards declara-
tion as only necessary before an offensive war. Thus in the seven-
teenth century the theoretical assertion of the necessity of declara-
tion was continuous and nearly universal; but the views and habits
of men of action are better represented in a passage of Molloy than
in the pages of Grotius or Pufendorf. 'A general war,' he says, 'is
either solemnly denounced or not solemnly denounced; the former
is when war is solemnly declared or proclaimed by our king against
another state. Such was the Dutch war, 1671. An un-solemn war
is when two nations slip into a war without any solemnity; and
ordinarily happeneth among us. Again, if a foreign prince invades
our coasts, or sets upon the king's navy at sea, hereupon a real, though
not solemn war may, and hath formerly, arisen. Such was the
Spanish invasion in 1588. So that a state of war may be between two
kingdoms without any proclamation or indiction thereof, or other
matter of record to prove it.'
The distinction which is here drawn between solemn and un-solemn
war is indicative of the tenacity of life which is shown by
forms; and the history of the eighteenth century shows how power-
less in this case they really were. They inspired sufficient respect
to prevent prizes taken before declaration of war from being con-
demned until after declaration took place, and it was perhaps worth
while to endeavor to excite odium against a nation by accusing it of
not observing due formalities; but wars constantly began without
declaration so long as the custom of using declarations continued,
and when after the Seven Years' War a practice of publishing mani-
festos within the country beginning the war and of communicating
them to neutral states was substituted for direct presentation of a
declaration to the enemy, wars were begun without manifestos. The
majority of writers however continued to repeat that declaration is
necessary.
Hall, pp. 392-396.
Views and practice in modern times.
In the present century the views of jurists are more divided. To
M. Hautefeuille the necessity of a declaration made direct to the
state against which an attack is intended seems to be incontestible,
and all hostile acts done before its issue are 'flagrant violations of
“le droit primitif."' It is difficult to say whether Heffter looks upon
a direct declaration as a necessity in law or only as the preferable
practice. M. Calvo, in spite of some inconsistencies of language, ap-
COMMENCEMENT OF WAR.
21
pears to regard declaration as obligatory. Riquelme thinks that a
manifesto is indispensable to the regularity of war as between the
belligerents, though, as it is not addressed specifically to or served
upon one by the other, it is not easy to see how it can act as a notice.
M. Bluntschli considers that the intention to make war must be
notified to an enemy, but holds that notification is effected by the
publication of a manifesto, and also that in a defensive war no decla-
ration is required, and that a war undertaken for defensive motives
is a defensive war notwithstanding that it may be militarily of-
fensive. It would probably be seldom that a state adopting this
doctrine would feel itself obliged to publish a manifesto. Wheaton
says that ‘no declaration or other notice to the enemy of the ex-
istence of war is necessary in order to legalise hostilities, but he is
sufficiently influenced by the conception of a difference between
solemn and unsolemn war to believe that without a manifesto it
might be difficult to distinguish in a treaty of peace those acts which
are to be accounted lawful effects of war from those which either
nation may consider as naked wrongs, and for which they may, under
certain circumstances, claim reparation.' Klüber and Twiss consider
that the practice of giving notice of hostility to an enemy ceased
with the disuse of declarations in the middle of last century, and
think with Phillimore that manifestos are intended for the informa-
tion of neutrals and of the subjects of the state issuing them, and
that no obligation to declare war now exists as between the enemy
states.
Practice on the other hand has been less variable than formerly.
The United States began war with England in 1812, and with Mexico
in 1846, without either notice or manifesto; Piedmont opened hos-
tilities against Naples in 1860 in like manner; and the war between
France and Mexico in 1838, beginning in a blockade instituted by the
former country which the latter chose to consider an act of hostil-
ity, forms an exact parallel in its mode of commencement to many of
the wars of last century. The war of 1870, which was commenced by
a declaration handed to Count Bismarck by the French · chargé
d'affaires, and that in 1877 between Russia and Turkey, which was
declared by a formal despatch handed to the Turkish chargé d'affaires
at St. Petersburg, afford the only instances of direct notice. In
most, if not all, other cases, hostilities have been preceded by
manifestos.
Hall, pp. 396-398.
Contra.
Looking at the foregoing facts as a whole it is evident that it is
not necessary to adopt the artificial doctrine that notice must be
given to an enemy before entering upon war. The doctrine was
22
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
never so consistently acted upon as to render obedience to it at any
time obligatory. Since the middle of last century it has had no
sensible influence upon practice. In its bare form it meets now with
little support, compared with that which it formerly received. In
the form of an assertion that a manifesto must be published it is so
enfeebled as to be meaningless. To regard a manifesto as the equiva-
lent of a declaration is to be satisfied with a fiction, unless it be
understood that hostilities are not to commence until after there
is a reasonable certainty that authenticated information of its con-
tents has reached the enemy government. The use of a declara-
tion does not exclude surprise, but it at least provides that notice
shall be served an infinitesimal space of time before a blow is
struck. A manifesto, apart from the reservation mentioned, is quite
consistent with a blow before notice. The truth is that no forms
give security against disloyal conduct, and that when no disloyalty
occurs states always sufficiently well know when they stand on the
brink of war. Partly for the convenience of the subjects of the state, ,
and partly as a matter of duty towards neutrals, a manifesto or an
equivalent notice ought always to be issued, when possible, before
the commencement of hostilities; but to imagine a duty of giving
notice to an enemy is both to think incorrectly and to keep open a
door for recrimination in cases, which may sometimes arise, when
action, for example on conditional orders to a general or admiral,
takes place in such circumstances that a manifesto cannot be previ-
ously published.
If the above views are correct, the moment at which war begins is
fixed, as between belligerents, by direct notice given by one to the
other, when such notice is given before any acts of hostility are done,
and when notice is not given, by the commission of the first act of
hostility on the part of the belligerent who takes the initiative.
Hall, pp. 398, 399.
This rule [Article 1, Hague Convention III, 1907] was adopted in
1907 with a view to obviating in the future occurrences which have
given rise in the past to complaints of attacks having taken place in
what seemed to be a time of peace. The value of such a rule is much
lessened by the failure of all efforts to graft upon it the requirement
that some fixed period of time, e. g. twenty-four hours, shall inter-
vene between the declaration and the first hostile act.
Holland, p. 18.
The necessity for something amounting to a Declaration of War
before the commencement of hostilities has been much discussed in
recent times with reference to the outbreak of war between Russia
and Japan; and, some years before that event, with reference to the
COMMENCEMENT OF WAR.
23
objections urged by British military authorities to the construction
of a Channel tunnel. See the Report, prepared for the War Office in
1883, by Lt.-Colonel (now Major-General) F. Maurice, upon Hostili-
ties without Declaration of War; and cf. the Resolutions of the
Institut de Droit International, voted at Ghent in 1906, Annuaire,
t. xxi, p. 292.
Holland, p. 81.
English view.
Many modern wars have been begun without either a declaration
or an ultimatum amounting to such, and one cannot deny that, in
practice, a formal declaration has not been customary in modern
times. Theory on the subject is divided. English jurists have, as a
general rule, taken the view that no declaration is necessary—that,
if given, it is a vain formality—and that a blow may properly be
struck before either declaration or manifesto is issued. In the Prize
Court case of the Eliza Ann, Lord Stowell laid it down that war
might exist without a declaration on either side. “A declaration of
war was not a mere challenge to be accepted or refused at pleasure
by the other. It proved the existence of actual hostilities on one side
at least, and put the other party also in a state of war, though he
might, perhaps, think proper to act on the defensive only.” Lord
Stowell's judgment does not, of course, decide the question as to
whether a declaration ought or ought not to be issued; all that it
decides is that war may exist without a declaration, which is merely
the evidence of a state of fact. But it is certainly true that English
jurists have mostly failed to confine the principle laid down by the
great Chancellor to its proper and natural domain. They have
argued that, because a declaration is not necessary in order to "legal-
ise a war," it is therefore not necessary at all. According to the
British school of writers, whatever reasons there may have once
been for a solemn declaration of hostilities (the chief being the prac-
tice of foreign enlistment and the necessity of recalling citizens who
were serving in other armies to their national standard), the need
has ceased to exist with the modern improvements in the means of
communication. “The rupture of diplomatic relations,” says a repre-
sentative English jurist, “is the constant precursor of armed con-
flict. Unless the first blow falls like a bolt from the blue, in a
period of profound peace, without previous complaint or demand for
redress, there is nothing in it that savours of treachery." The acri-
monious discussion which accompanied the commencement of the
Russo-Japanese War shows, however, that even when prolonged
diplomatic negotiations have taken place, the blow struck by the
readier belligerent may be construed by the other as a treacherous
attack; and the very fact that a complaint of treachery is possible,
24
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
whether well founded or not, is an argument in favour of a declara-
tion.
Spaight, pp. 20–22; Cobbett, Leading Cases in International Law, p.
152; Smith and Sibley, International Law as Interpreted during the
Russo-Japanese War, pp. 53, 54; Lawrence, War and Neutrality in
the Far East, pp. 28, 29.
Continental view.
The Continental jurists have been very strongly in favour of a
declaration [of war]. One of them has, quite unjustly, ascribed the
English doctrine to unworthy motives. “England," says Professor
Louis Le Fur of Caen, “having almost a monopoly of the tele-
graphic cables of the world, and possessing squadrons in every sea,
finds in this practice [of dispensing with a declaration) a consider-
able advantage. She can strike damaging blows at her enemy's com-
merce the moment hostilities open, capturing ships and sailors be-
fore they are even aware of the rupture of peaceful relations." The
European view is ably expressed by M. Bonfils, who says:
Acts done before the declaration have a doubtful character. Are they real
hostilities, or merely unauthorised attacks? A State which has not been
warned and which sees its frontiers attacked, would be authorised in regarding
the hostile soldiers and sailors as merely bandits or pirates committing an act
of aggression, and in applying to them the national laws dealing with brigands,
instead of the laws of war.
It was the European view which was approved at the Ghent ses-
sion of the Institute of International Law in 1907, and received offi-
cial international sanction in the same year at the Hague.
Spaight, p. 22; R. D. I., July-August, 1898, p. 672; Bonfils, sec, 1031.
As the [Hague] Convention stands, hostilities may legitimately
be begun the moment the notification reaches the adversary. A con-
dition of perfect preparedness is assumed on the part of the latter:
it is taken for granted that he is ready to defend himself, like a
duellist waiting for the word to take guard.
Spaight, p. 24.
The aggressor must make the declaration.
It is, of course, the aggressor who is bound to make the formal
declaration of war. Every nation has the right to defend itself from
attack. Continental jurists, while requiring a declaration from the
belligerent who takes offensive action, admit that it is not required
from the party repelling a hostile enterprise. Bluntschli adds that a
defensive war may necessarily have, for military reasons, to take the
form of offence. “From the point of view of law, the difference be-
tween the offensive and defensive war lies, not in the fact of being
the first to cross the frontiers or invade the hostile territory, but in
COMMENCEMENT OF WAR.
25
the difference of the respective rights of the parties.” Hence he
would dispense with a declaration where the threatened belligerent
forestalls his adversary in self-defence. The doctrine is a dangerous
one; aggressors are usually able to satisfy themselves that they are
acting on the defensive. Bluntschli's view has no warranty in the
Convention of 1907. The belligerent who strikes first, whether he is
really acting on the defensive and his aggression is merely a tactical
mode of self-protection, or not, is bound to give notice as laid down
in the first Article.
Spaight, p. 24; Bluntschli, secs. 521-524.
According to the former practice of the States a condition of war
could de facto arise either through a declaration of war; or through
a proclamation and manifesto of a State that it considered itself at
war with another State; or through the committal by one State of
certain 'hostile acts of force against another State. History presents
many instances of wars commenced in one of these three ways. Al-
though Grotius (III. c. 3, sec. 5) laid down the rule that a declara-
tion of war is necessary for its commencement, the practice of the
States shows that this rule was not accepted, and many wars have
taken place between the time of Grotius and our own without a pre-
vious declaration of war. Indeed many writers, following the ex-
ample of Grotius, have always asserted the existence of a rule that a
declaration is necessary for the commencement of war, but it can not
be denied that until the Second Peace Conference of 1907 such a
rule was neither sanctioned by custom nor by a general treaty of the
Powers. Moreover, many writers distinctly approved of the practice
of the Powers. This does not mean that in former times a State
would have been justified in opening hostilities without any preced-
ing conflict. There was, and can be, no greater violation of the Law
of Nations than for a State to begin hostilities in time of peace with-
out previous controversy and without having endeavored to settle
the conflict by negotiation. But if negotiation had been tried with-
out success, a State did not act treacherously in case it resorted to hos-
tilities without a declaration of war, especially after diplomatic in-
tercourse had been broken off. The rule, adopted by the First Peace
Conference of 1899—see article 2 of the Conventions for the peace-
ful settlement of international differences of 1899 and 1907—which
stipulates that, as far as circumstances allow, before the appeal to
arms recourse must be had to the good offices or mediation of friendly
Powers, did not essentially alter matters, for the formula as far as
circumstances allow leaves practically everything to the discretion of
the Power bent on making war.
The outbreak of war between Russia and Japan in 1904 through
Japanese torpedo boats attacking Russian men-of-war at Port
110678-19
3
26
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
Arthur before a formal declaration of war, caused a movement for the
establishment of some written rules concerning the commencement of
war. The Institute of International Law, at its meeting at Ghent
in 1906, adopted three principles according to which war should not
be commenced without either a declaration of war or an ultimatum,
and in either case a certain delay sufficient to ensure against treacher-
ous surprise must be allowed before the belligerent can have re-
course to actual hostilities. The Second Peace Conference at the
Hague in 1907 took the matter up and produced the Convention (III.)
relative to the commencement of hostilities which comprises four
articles and has beeen signed by all the Powers represented at the
Conference, except China and Nicaragua, both of which, however,
acceded later.
According to article 1 of Convention III. hositilities must not
commence without a previous and unequivocal warning, and one of the
forms which this warning may take is a declaration of war stating
the reasons why the Power concerned has recourse to arms.
A declaration of war is a communication of one State to another
that the condition of peace between them has come to an end and a
condition of war has taken its place. In former times declara-
tions of war used to take place under greater or lesser solem-
nities, but during the last few centuries all these formalities have
vanished, and a declaration of war nowadays may take place through
a simple communication. The only two conditions with which, ac-
cording to article 1, declarations of war must comply are that they
must be unmistakable, and that they must state the reason for the
resort to arms. No delay between the declaration and the actual
commencement of hostilities is stipulated, and it is, therefore, pos-
sible for a Power to open 'hostilities immediately after the com-
munication of the declaration of war to the enemy. All the more is
it necessary to emphasize that there could be no greater violation of
the Law of Nations than that which would be committed by a State
which sent a declaration to another without previously having tried
to settle the difference concerned by negotiation.
However this may be, the question as to the way in which the com-
munication of the declaration of war is to be made requires atten-
tion. Since there is nowhere a rule expressly formulated accord-
ing to which the declaration must be communicated in writing, it
might be asserted that communication by any means, be it by a writ-
ten document, by telegraph or by telephone message, or by direct
word of mouth, is admissible. I believe that such an assertion can-
not be supported. The essential importance of the declaration of
war and the fact that according to article 1 of Convention III. it
must be unmistakable and must state the reason for the resort to
arms, would seem to require a written document which is to be
1
COMMENCEMENT OF WAR.
27
handed over to the other party by an envoy. Further, the fact that
article 2 of Convention III. expressly enacts that the notification of
the outbreak of war to neutrals may even be made by telegraph,
points the same way, for the conclusion is justified that the declara-
tion of war stipulated as necessary by article 1 may not be made by
telegraph. And if a telegraph message is inadmissible, much more
are telephone messages and communications by word of mouth.
Moreover, the practice of the States throughout the last centuries
has been to hand in a written declaration of war, when any declara-
tion has been made.
Particular attention must be paid to the fact that, in case of a
declaration of war, the war, as between the belligerents, is considered
to have commenced with the date of its declaration, although actual
hostilities may not have been commenced until a much later date.
On the other hand, as regards relations between the belligerents and
neutrals, a war is not considered to have commenced until its out-
break has either been notified to the neutrals or has otherwise become
unmistakably known to them. For this reason, article 2 of Conven-
tion III. enacts that the belligerents must' at once after the outbreak
of war notify the neutrals, even if only by telegraph, and that the
state of war shall not take effect with regard to neutrals until after
they have received notification, unless it be established beyond doubt
that they were in fact aware of the condition of war.
The second form which the unequivocal warning, stipulated by
article 1 of Convention III. as necessary before the commence-
ment of hostilities, may take is an ultimatum with a conditional
declaration of war.
Ultimatum is the technical term for a written communication of
one State to another which ends amicable negotiations respecting a
difference, and formulates, for the last time and categorically, the
lemands to be fulfilled if other measures are to be averted. An ulti-
matum may be simple or qualified. It is simple in case it does not
include an indication of the measures contemplated by the Power
sending it; such measures may be acts of retorsion or reprisals, or
hostilities. It is qualified if it includes an indication of the measures
contemplated by the Power sending it, for instance a pacific block-
ade, occupation of a certain territory, or war. Now the ultimatum
stipulated by article 1 of Convention III. must be a qualified one,
for it must be so worded that the recipient can have no doubt about
the commencement of war in case he does not comply with the
demands of the ultimatum. For this reason, if a State has sent a
simple ultimatum to another, or a qualified ultimatum threatening
a measure other than war, it is not, in case of non-compliance,
justified in at once commencing hostilities without a previous decla-
ration of war. For this reason, Italy sent a declaration of war to
28
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Turkey in 1911, although an ultimatum threatening the occupa-
tion of Tripoli had preceded it.
Nothing is enacted by article 1 of Convention III. concerning the
minimum length of time which an ultimatum must grant before the
commencement of hostilities; this period may, therefore, be only very
short, as, for instance, a number of hours. All the more is it neces-
sary here likewise to emphasize that there could be no greater vio-
lation of the Law of Nations than that which would be committed
by a State which sent an ultimatum without previously having tried
to settle the difference concerned by negotiation.
It must be specially observed that the state of war following an
ultimatum must likewise be notified to neutrals, for article 2 of Con-
vention III. applies to this case also. And it must further be ob-
served that, for the same reason as in the case of a declaration of war,
an ultimatum containing a conditional declaration of war must be
communicated to the other party by a written document.
There is no doubt that, in consequence of Convention III. of the
Second Peace Conference, the recourse to hostilities without a pre-
vious declaration of war or qualified ultimatim is forbidden. But
the fact must not be overlooked that a war can nevertheless break out
without these preliminaries. Thus a State might deliberately order
hostilities to be commenced without a previous declaration of war
or qualified ultimatum. Further, the armed forces of two States
having a grievance against one another might engage in hostilities
without having been authorised thereto and without the respective
Governments ordering them to desist from further hostilities. Again,
acts of force by way of reprisals or during a pacific blockade or an
intervention might be forcibly resisted by the other party, hostilities
breaking out in this way.
It is certain that States which deliberately order the commence-
ment of hostilities without a previous declaration of war or qualified
ultimatum, commit an international delinquency, but they are never-
theless engaged in war. Further, it is certain that States which
allow themselves to be dragged into a condition of war through un-
authorised hostile acts of their armed forces, commit an international
delinquency, but they are nevertheless engaged in war. Again, war
is actually in existence if the other party forcibly resists acts of force
undertaken by a State by way of reprisals, or during a pacific block-
ade or an intervention. Now in all these and similar cases, although
war has broken out without a previous declaration or qualified ulti-
matum, all the laws of warfare must find application, for a war is
still war in the eyes of International Law even though it has been
illegally commenced, or has automatically arisen from acts of force
which were not intended to be acts of war.
COMMENCEMENT OF WAR.
29
However that may be, article 2 of Convention III. also applies
to wars which have broken out without a previous declaration or
qualified ultimatum, and the belligerents must without delay send a
notification to neutral Powers so that these may be compelled to ful-
fil the duties of neutrality. But, of course, neutral Powers must in
this case likewise, even without notification, fulfil the duties of neu-
trality if they are unmistakably aware of the outbreak of war.
Oppenheim, vol. 2, pp. 121–128.
A declaration of war is a formal notification on the part of a state
that it considers itself at war with another state to which the noti-
fication is sent. The question whether such declarations are neces-
sary was answered in the affirmative by the Hague Conference of
1907. But before we give the exact terms in which it ended a con-
troversy as old as International Law, it will be advisable to state
very briefly how matters stood before its intervention. Among the
early publicists there was a great preponderance of opinion in favor
of the doctrine that no state ought to commence hostilities before it
had sent to its opponent a formal notice of its intention to fight. But
if we turn to practice we find that, though in the Middle Ages heralds
were generally despatched with much ceremony to give the enemy
warning, sometimes the notice itself was turned into an insult, as
when Charles V of France declared war in 1369 against Edward III
of England by a letter the bearer of which was a common servant.
• After the decay of the mediaeval order the use of heralds grad-
ually ceased. It was followed by formal diplomatic statements to
the other side of a determination to commence hostilities. But these
were often omitted, and at last in the eighteenth century they be-
come the exception rather than the rule. Such declarations as we
do find were made more often than not some time after acts of hos-
tility had been going on. For instance, fighting commenced between
England and France by land and sea in 1754, but the formal declara-
tions of war were not made till 1756. One more case will suffice
out of the many that lie ready to hand. At the end of 1787 Austria
seized various Turkish fortresses, but she did not declare war till
February, 1788. Little change took place till the latter part of the
nineteenth century, when the practice of making declarations before
resorting to the use of force showed signs of revival. In 1870 the
French chargé d'affaires at Berlin handed in a formal declaration
of war before the outbreak of hostilities between France and Prus-
sia, and in 1877 a despatch declaring war was given to the Turkish
representative at St. Petersburg.
With such a history as this behind them, it is evident that modern
jurists could not insist on the ancient view that International Law
30
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of war.
required a formal declaration of war as a preliminary to any warlike
acts, or at least as contemporary with them. The contrary doctrine
that no declaration is necessary was the only one that could be de-
duced from the practice of nations; and practice was the only
evidence of their consent before the existence of a general interna-
tional agreement embodied in a binding document. We find, there-
fore, that most writers on the subject uphold the latter view, though
there still remain some who follow the ancient authorities, in a
laudable endeavour to provide against treacherous attacks. But
their zeal for righteousness causes them to fall into the old con-
fusion between what is and what ought to be. International morality
does undoubtedly demand that no hostile operations shall be com-
menced without warning. This is, however, a very different thing
from commencing without declaration. To attack another state in
a period of profound peace, without having previously formulated
claims and endeavored to obtain satisfaction by diplomatic means,
would amount to an act of international brigandage, and would
probably be treated accordingly. But, the state of things set up by
such abominable means would nevertheless be war, and both sides
would be expected to carry on their operations according to the laws
When in 1904 Admiral Togo made his celebrated dash on
the Russian fleet in the outer harbor of Port Arthur, Japan was
immediately accused, not of being engaged in operations that could
not be regarded as war, but as having commenced a war by“ a treacher-
ous attack.” The facts of the case lent no countenance to this view.
Negotiations had been going on without avail since July, 1903. On
February 6, 1904, the Japanese minister at St. Petersburg handed to
Count Lamsdorff, the Russian Foreign Secretary, a note which not
only broke off diplomatic negotiations, but added that the government
of Japan “reserved to themselves the right to take such independent
action as they may deem best to consolidate and defend their menaced
position.” This was an unmistakable warning that hostilities might
be expected at any moment. On the day it was delivered the Japan-
ese squadron sailed from Sasebo and one of its vessels captured a
cruiser of the Russian Volunteer Fleet. On the 8th the Russian
warships at Port Arthur were seriously damaged by Japanese tor-
pedo boats, and on the 9th an action was fought off Chemulpo, as
a result of which a Russian cruiser and gunboat were destroyed.
After acts of hostility had been going on for four days, Japan pub-
lished a formal declaration of war on February 10.
There can be no doubt that the conduct of the island empire on
this occasion was in no way open to the charge of treachery. It was
well within approved precedents. But the controversy it provoked
called the attention of the civilized world to the matter; and the
obvious unreality of making declarations of war some time after
COMMENCEMENT OF WAR.
31
the war had commenced was incapable of explanation on any reas-
onable grounds. No doubt it had become a settled rule of Inter-
national Law in such cases to date the commencement of war,
with
all the legal changes it involves, from the first act of hostility. But
it is often difficult to settle what is the first act of hostility. Expert
opinions have differed as to the particular war we are now discussing.
A Japanese prize court at Sasebo decided in the case of the Argun
that “the war commenced when the Japanese fleet left Sasebo with.
the intention of attacking the Russian fleet”; but a higher court
declared soon after in the case of the Mukden that the state of war
between the two countries dated from the capture of the Ekaterinos-
lav, the first vessel seized by Admiral Togo's squadron on its way
to Port Arthur. Clearly there were strong grounds for what may
be termed international legislation on the matter. And it was
equally clear that the objects of any such legislation must be to pro-
vide for a notice so unequivocal in character that no charge of
treachery could arise, to remove all doubt as to the exact moment
when a state of war was substituted for a state of peace, and to
secure for neutrals immediate notice of an event that makes so im-
portant a change in their own rights and duties.
Lawrence, pp. 345-348.
It is obvious that these words [of the first article of Hague Con-
vention III, 1907] apply only to the side which decides to resort
to immediate hostilities, and not to that which awaits action on
the part of its adversary, even though it may have so acted as to
force on the war of set purpose, and be so well prepared that it
strikes the first blow. The position of neutrals was defined and pro-
tected in the second article, which provided that “the existence of a
state of war must be notified to the neutral powers without delay,
and shall not take effect in regard to them until after the receipt of
a notification, which may, however, be given by telegraph.” But in
the absence of such a notification the rights and duties of neutrals
will accrue to states, “if it is clearly established that they were in
fact aware of the existence of a state of war."
The Convention has been signed by all the powers represented at
the Conference with the exception of China and Nicaragua. What
it asserts may therefore be regarded as the law of the civilized world.
It is true that the phrasing of the article does not in so many words
pledge the contracting powers to commence their future wars with
formal declarations. But when they are made to say that hostilities
must not commence without declaration, they do in effect pledge
themselves to declare, since no power would care to face the accu-
sation of violating a rule after stating in a solemn international
agreement that it ought always to be observed. It is important to
32
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
note that, according to the terms of the first article of the Conven-
tion, the declaration must be issued before the first act of force takes
place (préalable). It must also be perfectly clear and unmistakable
in its terms (non équivoque), and must give reasons why the state
that issues it has resorted to war (motivée). The attempt of Holland
to secure an interval of twenty-four hours between notice and attack
failed. The blow may fall immediately after the declaration is
made. But, treachery apart, in no case when common prudence has
been exercised can a state be taken altogether unawares; for sudden
demands which have not been answered and negotiated upon cannot
supply the material. for the reasoned declaration that is required.
No law can prevent deliberate perfidy. All that can be done by the
legislator is to make it difficult, and this the second Hague Confer-
ence has accomplished with regard to the matter before us. On the
other hand its regulations do not deprive a well-prepared power
of the advantage of striking the first blow, for “notice to your ad-
versary that you are tired of negotiating and mean to fight is by no
means the same thing as notice that you will attack at a given place,
on a given day, and at a given time.” 1
Lawrence, pp. 348, 349.
Ultimatum,
The Convention, as we have seen, offers an alternative to a declara-
tion of war in the shape of an ultimatum with conditional declara-
tion. When one power makes demands on another, and couples with
them an intimation that war will be the cost of their rejection, it is
said to present an últimatum; and when the ultimatim contains a
statement to the effect that unless a favorable reply is given by a cer-
tain time hostilities will then begin, it is an ultimatum with con-
ditional declaration of war. If it is left unanswered, or answered
unfavorably, a state of war commences at the time named, no further
declaration being required. A recent example is to be found in the
despatch delivered to the British agent at Pretoria on behalf of the
South African Republic on October 9, 1899. This document made
various demands on Great Britain, and added that if they were not
complied with before five o'clock in the afternoon of October 11,
war would be held to have broken out between the two powers. The
reply was a stern refusal to discuss such demands so presented;
and accordingly the Boer War dates from the time indicated in the
ultimatum.
Lawrence, p. 350.
History and unwritten law.
It is natural that Grotius, whose definition of war we have found
to be the best of those examined, should also be found to lay down
1 Lawrence, International Problems and Hague Conferences, p. 90.
COMMENCEMENT OF WAR.
33
A
!
a particularly clear doctrine on the mode of commencing it. He has
spoken of war as an institution producing legal effects (1. 3. 4. 1,
3. 3. 1. 1), and adds that by the law of nations a declaration of war
(denuntiatio) is required in every case in order to produce those
peculiar effects, but that it is sufficient if this proceeds from one
party (3. 3. 6. 3, 3. 3. 7. 3). “The cause," he says, "for which
nations have required a declaration for a lawful war was not, as
some allege, that they might do nothing secretly or by a clever
trick, for that consideration belongs rather to the perfection of
gallantry than to law, as we read that some peoples even appointed
the day and place of combat, but that it might appear with cer-
tainty that the war was not waged by private audacity but by the
will of the peoples on either side or their heads; for that is the
source of its peculiar effects, which have no place in a contest with
brigands or in one between a king and his subjects." (3. 3. 11).
It does not however follow that any particular form of declaration
is necessary, as by a herald or by sending a bloody spear, or any
condition added to the declaration, as the lapse of thirty days before
commencing hostilities, for such have often fallen into disuse even
among those who once required them (3. 3. 8). "Nor is it true that
by the law of nations hostilities cannot be commenced immediately
on the declaration of war, for that law requires no intervening time;
but by the law of nature”--that is, as we now express it, by jus-
tice—“ some time may be required by the character of the case, as if
redress or the punishment of a guilty person has been demanded and
has not been denied. For then so much time must be given as is
necessary for doing conveniently what has been asked” (3. 3. 13).
Subsequent practice has ratified the opinion of Grotius as to the
indifference of form in public declarations of war. Between 1657,
when Sweden declared war against Denmark by a herald-at-arms
sent to Copenhagen, employing perhaps for the last time the proceed-
ing of the old diffidatio, and 1870, when France presented at Berlin
a declaration of war against Prussia, it would be difficult to find an
instance of war being expressly declared at the court against which
it was directed, although notes declaring a rupture of negotiations
may have been presented which were so worded as to be substantially
declarations of war. During the interval public declarations of
war were made by documents bearing that name or that of mani-
festoes, issued at home by the declaring power, which through the
world-wide notoriety ensured them in modern times served every
purpose which could have been served by presentation at the other
court. They also gave an opportunity of announcing the practice
which the declaring power intended to follow in matters concerning
neutrals, or even concerning the enemy, for example the treatment
0
34
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of his ships found in its ports. And these declarations of war are
still in current use.
But on another point, the necessity that the commencement of
hostilities should be preceded or accompanied by a declaration of
war in some form or other, it was against a practice which had
already begun before his time that the teaching of Grotius was
directed. Of this practice the war between Elizabeth and Philip
II was a conspicuous example. The depredations of Drake and the
other English sea-captains took place without any declaration, but
the queen's connivance at and participation in them were not intended
as war, except in the limited and informal sense in which it used
to be said in Elizabethan England that there was no peace beyond
the line. Neither however was the despatch of the Armada accom-
panied by a declaration, which on Grotian principles would have
been necessary even were it only an acceptance of a state of war
declared by it to exist. And the practice continued in spite of
Grotius, the first acts of force in the case of naval wars being some-
times done under a formal announcement of general reprisals, as
was the case with the Anglo-Dutch war of 1665, which Sir Matthew
Hale (1 Pleas of the Crown 163) states to have grown, without ever
being “solemnly denounced," out of an English “act of council
which instituted only a kind of universal reprisal.” Thus an insti-
tution recognized as distinct from war, which in the middle ages may
have served to bring about the settlement of many quarrels without
the interruption of the relation of peace, was wrested to a mode of
obscuring the demarcation between war and peace; and the Grand
Pensionary De Witt was justified, from the point of view of a poli-
tician rather than of a jurist, in saying that “he saw no difference
between general reprisals and open war.” In 1739 George II granted
letters of marque and reprisal against Spain on a ground falling
within the narrowest view that can be entertained as to the proper
occasions for such letters, that of failure to pay a sum of money
due by treaty, and deprecated their being considered as an inter-
ruption of the peace. But the king of Spain ordered a counter
embargo of all British ships in Spanish harbours, and war was
thereupon declared by Great Britain, by the reflex operation of
which war Sir Travers Twiss tells us that "the property seized by
way of reprisal became subject to condemnation as the property of
enemies ab initio." The Seven Years' War was not declared as
between Great Britain and France till 1756, and general reprisals
had not previously been ordered, but French vessels had been cap-
tured by the British navy as early as 1754, and their restoration was
refused by Lord Chatham in the negotiations for peace in 1761 on
the ground that belligerent rights did not result from a formal
declaration of war but from the hostilities first offered, which Great
COMMENCEMENT OF WAR.
35
Britain laid to the charge of France in respect of the acts of force
which had taken place in America and India. In 1778, when Great
Britain and France were again fighting without formal declaration,
it was represented to Lord Chancellor Thurlow that the case of
1754–6 ought to be taken as one of reprisal, in which captures are
only detained as pledges for satisfaction, and it was said that no
prizes were then condemned or distributed before the declaration.
Thereupon his lordship desired the secretary of the admiralty to
order a search to be made as to the course taken in commencing wars
by the British government since the revolution.
The war of 1778 was never expressly declared on either side. The
French ambassador delivered in London a declaration of 15 March,
to the effect that the king had recognised the independence of the
United States and concluded a treaty of friendship and commerce
with them, and was prepared to maintain effectively his treaty
rights and the honour of his flag. The British government then
recalled its ambassador from Paris and laid an embargo on all French
vessels in British ports, whereupon the French ambassador was re-
called from London, a French fleet sailed to North America, and a
series of naval actions ensued. The war was therefore merely a
de facto one throughout, unless the French document of 15 March
can be considered as a conditional declaration of war, dependent on
the attitude of Great Britain on its receipt, and converted by that
attitude into an actual one.
The wars between the continental powers in the seventeenth and
eighteenth centuries were often commenced in fact before their
declaration, and were sometimes carried through without any
declaration, quite as a matter of course, without that confused refer-
ence to reprisals as a distinct institution which helped to warp the
thoughts and the conduct of the maritime powers. Thus on all sides
the habit arose of regarding lawful war, that is war with all its legal
effects, as commenced no less by fact than by declaration, and dating
it from the commencement of hostilities. By that term, if we try to
put a definite meaning on it, we must understand the first act of
force done with the intent of war and not with that of reprisals or
pacific blockade, or the first act of force done with the intent of
reprisals or pacific blockade if a war follows, or the first act of force
done with whatever intent-self-defence, seizing what is called a
material guarantee, or any other—which the state affected by it
chooses to regard as one of war. Nor is it possible to refuse its legal
effects to a state of war so entered on, or to date its commencement
as between the parties otherwise. But from the point of view of
political morality it cannot be too strongly maintained that so seri-
ous a step as the entrance on a state of war ought not to be taken
36
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
without the deliberation for which the only security approaching to
adequacy is the necessity of expression. No power doing an act of
force with the intent of war, nor any power treating as war an act
of force done by another, is morally justified in omitting to accom-
pany its conduct by some kind of declaration. Nor again is any
power doing an act of force morally justified in not having a clear
view whether it intends it as war or not. If an act of force affects
third powers and they submit to it, deeming at the same time that it
places them in the position of neutrals in war with neutral rights
and duties, they can scarcely avoid stating the view which they take
of the situation. All this springs from or coincides with the princi-
ple that international relations ought to be certain, on which we have
seen Grotius basing his demand for a declaration of war in every
case; and since the long peace of 1815–1848 the mere de facto com-
mencement of hostilities has fallen into desuetude, except so far as
pacific blockade tends to obscure the matter as reprisals formerly did,
and the commencement of hostilities has been preceded or accom-
panied by declarations of war.
The demand for an interval of notice, more or less defined, which
is sometimes put forward, more by popular or partisan writers than
by serious students, we must reject, again in agreement with Grotius.
An attack which nothing had foreshadowed would be infamous, and
third powers would probably join in resenting and opposing it. But
usually claims or complaints are pressed with increasing insistency,
the tone of the negotiations becomes more and more acrimonious,
preparations are made which cannot altogether be concealed, and the
outbreak of war is not really a surprise to anyone. Sometimes the
disputant who declares it has delayed doing so until the preparations
made by his adversary have convinced him that he can no longer
safely delay, and it would be impossible to demand from him a
notice which would only give a further advantage to the party which
had tried his forbearance so long. In 1187 the emperor Frederick
Barbarossa, by a constitution made in a diet at Nuremberg, imposed
on the right of anyone to do justice to himself the condition of giv-
ing three days' notice to his adversary. This was suitable enough to
private war, but not to the contests of the German princes when the
weakness of the empire had caused their position to approach that
of independence. Accordingly in 1356 the Golden Bull of the
emperor Charles IV retained the suspensive interval only as an
alternative to declaration, providing that no one should on any pre-
text invade his neighbour unless he had given him three days' per-
sonal notice beforehand, or had publicly signified his intention to
make war against him at the place of his usual residence in the
presence of competent witnesses. Nor has a necessity for an interval
between announcing the intention of hostilities and commencing
COMMENCEMENT OF WAR.
37
them ever formed part of the systematic relations between the na-
tions of the world.
It will have been noticed that the necessary declaration of war has
been spoken of as preceding or accompanying the first act of force,
and that the denial by Grotius of the necessity of even the shortest
interval between them amounts to permitting the one to accompany
and not necessarily to precede the other. That it is necessary not to
make everything turn on the declaration's preceding is shown by the
case in which a power that has not left its positive insistence on its
claims in doubt, and which therefore must be expected to meet
force by force, finds itself confronted by preparations which it is no
longer safe to disregard. It would be idle to say that a power so
circumstanced must let slip an opportunity of hindering the offen-
sive preparations for want of a previous declaration of war, nor can
its hindering them be really a surprise, but it will be bound to regu-
larize its action by declaring war as soon as practicable. And this
may not be for some days if the incident took place at a distance from
the seat of government, so that the term “accompanying” which has
been used must not be construed with pedantic strictness. The maxim.
that the state and legal effects of war must be dated from the com-
mencement of hostilities will apply, but the case will be very differ-
ent from those which gave birth to that maxim, such as captures
being made in distant oceans by commanders acting under instruc-
tions to that effect, and war being declared two years afterwards.
An example is furnished by the commencement of the war of 1894
between China and Japan. The dispute between those powers con-
cerned their respective relations to Korea, and from early in June.
both parties had been pouring troops into that country. On 25
July a Japanese squadron met near Korea with Chinese men-of-war
escorting the Kow-shing, a transport loaded with a further number
of soldiers; and an action commenced, before indeed the Japanese
had sighted the Kow-shing, but when it must have been obvious to
both parties that each was on the spot in order to assist in strength-
ening its own position in Korea and prevent that of the other from
being strengthened. Whichever side fired the first shot, the govern-
ment under whose instructions it was fired must be considered to
have borne with the preparations of its adversary up to the point at
which it did not deem it safe to bear with them any longer, and can
not be blamed for trying to stop them. The emperor of Japan for-
mally declared war on 1 August, and on 10 September Count Ito, his
minister president of state, wrote officially "let it be known that the
commencement of the present war was 25 July.”
The war of 1904 between Japan and Russia began in a more regu-
lar manner, for the note which Mr. Kurino, the Japanese minister,
38
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
presented at St. Petersburg on 6 February expressly declared the
termination of the negotiations and the right reserved by his gov-
ernment to take independent action, while he at the same time an-
nounced his intention to take his departure with the staff of his
legation. This can hardly be regarded otherwise than as a declara-
tion of war, especially since on 28 January Mr. Kurino had said to
Count Lamsdorff that “further prolongation of the present condi-
tion is not only undesirable but rather dangerous," and on 31 Janu-
ary Count Lamsdorff told Mr. Kurino that “he fully appreciated
the gravity of the present situation." Indeed, the Japanese note bore
a close resemblance to that which the Spanish government commu-
nicated to General Woodford, the United States minister at Madrid,
on 21 April 1898. This declared that relations between the two gov-
ernments were broken off and that no further American communi-
cation would be received, and was answered by the General's de-
manding his passports the same day, while the Spanish minister at
Washington had demanded his the day before. Captures of Spanish
vessels were made by the United States navy at least as early as the
22nd, and on the 25th Congress, consulted by President McKinley,
determined by a joint resolution that there had been war from the
21st inclusive. That was a legitimate interpretation of the situation
created by the Spanish note, and not a retrospective dating of the
wer to the first acts of force or in order to cover them, ils has been
represented. If we cannot be content to agree with Grotius that
declarations of war are not tied to form, it will be difficult to know
where to stop, short of requiring a special messenger to be sent with
them.
Westlake, vol. II, pp. 19-27.
Ultimatum.
It remains to say that a declaration of war may be conditional,
presenting an ultimatum to be accepted within a given time, other-
wise war then to begin. This is very common, and an instance fa-
miliar to our British readers is that of the ultimatum delivered on
behalf of President Kruger to the British agent at Pretoria on 9
October 1899, by which it was declared that the absence of an affirma-
tive answer to the four terms therein laid down, by 5 p. m. on the
11th, would be regarded as a formal declaration of war. It has never
been controverted that a state of war is entered on at the expiry of
the delay mentioned for that purpose in a conditional declaration
without satisfaction of its demands.
Westlake, vol. II, pp. 27, 28.
Armed interventions.
What has been said about the commencement of war will not in
general apply to those armed contests which arise out of the interven-
COMMENCEMENT OF WAR.
39
tion of a state in the internal dissensions of another state. Such in-
terventions are usually undertaken by stronger powers in the affairs
of weaker ones, or by a coalition in the affairs of a single power, and
are therefore usually successful for the time although the resentment
they cause may aid in the producing a reaction later. Consequently,
if the party intervened against is not in possession of the government,
it will probably be put down without a state of war having existed
between the two powers, although the laws of war ought to be and
probably will have been observed in the fighting. There will have
been no declaration of war, nor any occasion for one. If on the other
hand the party intervened against is in possession of the government,
as Napoleon was in possession of that of France in 1815 and the con-
stitutionalists of that of Spain in 1823, there will still be no declara-
tion of war, because the interveners, not recognising the actual gov-
ernment as legitimate, will not admit that their quarrel with it is
a quarrel with the state which it claims to represent. Here also,
therefore, there will not be a state of war with the usual abrogation
or suspension of treaties as its effect, and yet the struggle may be such
that at its close some new arrangements between the de facto bellig-
erents may be desirable. Thus in 1815 the allies did not declare war,
and they allowed the representatives of Louis XVIII to sign on be-
half of France their manifesto of 13 March against Napoleon and on
9 June the final act of the Congress of Vienna, while de facto hos-
tilities were onward between them and the actual government of
that country. The struggle was closed by the treaty of 20 November
1815, which was not nominally one of peace, but in Art. 10 of which
“the hostilities" are mentioned; and that treaty was described as
one of peace in the protocol and declaration of Aix-la-Chappelle, 15
November 1818. Similarly the French invasion of Spain in 1823
produced no technical state of war, and was followed by a conven-
tion, 5 January 1824, about the maritime' prizes taken.
Westlake, vol. II, pp. 28, 29.
Hague provisions.
To the foregoing statement of the history and unwritten law of
the subject it must be added that by Art. 1 of No. 3 of the Hague
conventions of 1907, the one relative to the Opening of Hostilities,
which was signed by all the powers represented at that conference,
“the contracting powers recognise that hostilities between them must
not begin without a previous and unequivocal warning, in the form
either of a declaration of war giving reasons, or of an ultimatum
with a conditional declaration of war.” It is thus provided, first,
that any recurrence of the old de facto wars will in future be a
breach of formal international law, though the legal effects of war
will not the less follow. Occasions may still arise on which it will
40
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
be necessary to defeat by force preparations which it is no longer
safe to disregard, at some point where a previous warning cannot be
given, and it may be assumed that general opinion will then be con-
tent with a declaration made as early as practicable. Secondly, the
declaration must be in writing, since it must contain an expression
of reasons, and it must be directly addressed to the government to
be affected, since the old form of a manifesto might conceivably fail
to give a previous warning, and could not in any case convey an
ultimatum with a conditional declaration. But, thirdly, the interval
by which the warning must precede hostilities is wholly undefined,
and Italy in 1911 availed herself of the latitude thus left by allowing
in her ultimatum to Turkey no substantial interval for compliance
with it, and by commencing hostilities with no substantial delay
after the presentation of her declaration. The commencement of
war as between the belligerents remains, therefore, on its Grotian
footing, only with less indifference to form.
Westlake, vol. II, p. 28.
Japanese action against Russia.
The question whether Japan was justified in opening hostilities
in the circumstances described, without a prior declaration of war,
must be judged, of course, by the customary law of nations, and not
by the present conventional rules. The views of the text writers on
this subject differ greatly. Some insist on the necessity of a prior
declaration, or, at any rate, of specific notice directly addressed by
an intending belligerent to his foe; others, whilst requiring prior
notice, yet regard a proclamation or manifesto-not necessarily ad-
dressed to the enemy State—as sufficient; whilst others again regard
both declaration and notice as unnecessary, treating those usually
issued in practice as intended for the information rather of subjects
or neutrals than of the enemy. International practice on the sub-
ject has also varied. Down to the sixteenth century it appears to
have been usual to notify an intended war by letters of defiance
and later by heralds; but this practice naturally fell into disuse. As
the result of an exhaustive inquiry, it has been found that from 1700
to 1870 there are only 10 instances in which war was preceded by a
formal declaration; whilst there are no less than 107 instances in
which it was commenced without declaration. In the later wars of
the nineteenth century, indeed, we notice a tendency to revert to the
earlier practice of issuing a formal declaration prior to the com-
mencement of hostilities. But in 1904 the newer practice had cer-
tainly not reached a stage at which it could be said to have become
obligatory or to have displaced what had been the predominant prac-
tice of States for nearly three centuries. Hence we may take it that
under the customary law, as it obtained in 1904, there was no obliga-
COMMENCEMENT OF WAR.
41
unawares.
tion on an intending belligerent to issue a formal declaration or
notice to his foe before commencing hostilities; and that Japan
therefore broke no law in commencing hostilities in the circum-
stances previously described. At the same time, the rule that war
may legitimately be begun without prior declaration or notice, does
not imply that either party would be justified in taking the other
“An attack," says Professor Westlake," which nothing
had foreshadowed, would be infamous, and third Powers would
probably join in resenting and opposing it.” Hence even under the
customary law-—which on this point still remains in force—no attack
may lawfully be made unless friendly relations have been terminated
in sufficient time, and under such circumstances, as to guard against
all reasonable danger of surprise. But even so, it would still appear
that the charge of surprise and treachery made against Japan was
unfounded; for the reason that the war arose only after the failure
of a long series of negotiations, that both parties had for some time
past been hurrying on their preparations, and that both must have
regarded an outbreak of war as probable, if not inevitable. On the
6th February, moreover, the Japanese Government, in severing
diplomatic relations with Russia, had expressly reserved its right" to
take such independent action as it might consider best to consolidate
and defend its menaced position"; and this warning had been given
some two days before the attack on Port Arthur, which, although not
the starting-point of the war, constituted the chief factor in the
Russian charge of treachery and surprise.
Cobbett, pt. II, pp. 6, 7.
1
Date when Russo-Japanese war commenced.
With respect to the actual date at which the war may be said to
have commenced, a state of war will arise either upon a formal decla-
ration of war, whether unilateral or bilateral; or by some act of force
done by one party against the other with, intent of war; or by some
act of force done by one party, even without such intent, if the other
elects to treat it as a cause of war. The question of war or no war
is at bottom a question of fact, and if proved to exist in fact, then
the state or relation of war will arise with all its attendant conse-
quences, no matter what irregularity or default on either side may
have attended its commencement. Applying these principles to the
case in hand, it seems clear that the mere severance of diplomatic
relations by Japan on the 6th February did not in itself amount to
war, for the reason that such a proceeding is frequently resorted to
in times of tension or grave misunderstanding without intent of war,
although such a practice is greatly to be deprecated. Nor again did
the mere sailing of the Japanese fleet from Sasebo on the morning of
the 6th February constitute war, even though there was now a clear
110678—19
4
42
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
intent to open hostilities, for the reason that a war de facto can only
arise out of some direct act of force applied by one party to the other.
Hence the actual commencement of the war would appear to date
from the capture by the Japanese of the Ekaterinoslav, which
occurred somewhat later on the same day. If this be so, then it is
from this moment that the new relations inaugurated by war must be
deemed to have accrued.
Cobbett, pt. II, p. 7, 8.
The Question of Prior Notice: (a) Under the Customary Law.-In
view of the fact that the conventional law does not cover all possible
contingencies in relation to the commencement of war, the rules of
the customary law have not altogether lost their application. Our
previous survey of the practice of States on this subje-t suggests the
llowing conclusions: (1) that under the customary law no formal
declaration or specific notice could be regarded as indispensable to
the opening of hostilities, although it was usual for belligerents either
before that occurrence or shortly afterwards to issue a proclamation
announcing the fact of war and sometimes giving reasons for it; but
(2) that whether a formal declaration was issued or not, and whether
it was issued before or after the commencement of war, no State
was justified in opening hostilities against another State unless
friendly relations had been severed at such time and under such cir-
cumstances as to guard against any reasonable danger of surprise.
The former of these rules has now been superseded, as between the
great body of civilized States, by the provisions of the Hague Con-
vention, No. 3 of 1907; but the second still remains operative.
(b) The effect of the Hague Conventions.- The Convention “re-
lating to the pacific settlement of international disputes,” No. 1 of
1907, pledges its signatories generally to the adoption or acceptance
of various methods of amicable settlement, such as arbitration, media-
tion, and good offices, before having recourse to war. The nature
and effect of these methods have already been discussed. A more
specific obligation is now imposed by the Convention “relating to the
opening of hostilities," No. 3 of 1907. This Convention (1) recog-
nizes that as between the contracting Powers hostilities ought not to
commence without previous and explicit notice, in the form of either
a declaration of war, stating the grounds on which it is based, or an
ultimatum, containing a conditional declaration of war (Art. 1);
and (2) provides that the existence of a state of war should also be
notified to neutral Powers without delay, and shall not take effect
in regard to them until after the receipt of a notification, which may,
however, be given by telegraph, although neutral Powers cannot
plead the absence of notification in a case where it is established
beyond question that they were in fact aware of the state of war
I
COMMENCEMENT OF WAR.
43
(Art. 2). The former provision applies only to cases of war between
Powers that are parties to the Convention; but the latter applies
where either of the belligerents and any neutral Power are parties
thereto (Art. 3). Art. 1, it will be observed, whilst requiring an
absolute or conditional declaration, does not interpose any interval
between the declaration and the commencement of hostilities. Inas-
much as there is nothing in the actual terms of the Convention to pre-
vent the declaration and attack from being delivered simultaneously,
it would seem that on this point the Convention must be read subject
to the earlier rule, which forbids treachery and surprise. Art. 2
merely converts a requirement previously resting on courtesy and
convenience into a legal obligation. The main value of the Conven-
tion lies in the fact that it will serve, in cases where it applies and
is observed, to mark clearly the fact and date of the outbreak of war,
and especially the date as from which neutral duties and liabilities
will be deemed to accrue. At the same time, the signatories do not
pledge themselves absolutely to refrain from hostilities without a
prior declaration, but merely recognize that as between them hostili-
ties “ought not to commence” without previous and unequivocal
warning. The object, no doubt, was to exclude cases in which it
might be necessary to use instant force in order to repel some hostile
preparation or movement, occurring either at a place where com-
munication with the war-declaring authority would be difficult, or
under circumstances where the other party would obviously have no
cause for complaint on the ground of surprise. · Both in this and in
any other case where acts of force are resorted to with intent of war,
but without declaration, a state of war will ensue, and the usual
incidents of war will attach in the same way as under the earlier
customary law. Nor do the provisions of the Convention apply
where acts of force in the nature of reprisals or pacific blockade are
resorted to, whether as methods of constraint short of war, or as
measures of international police; although if the State sought to be
coerced should elect to treat such acts as a cause of war, it would seem
to be incumbent on it to issue a declaration of war. The Convention
applies to all cases of war between States, whether sovereign or semi-
sovereign, as well as to the accession of a new belligerent; but not,
of course, to cases of civil war, which do not come within the range
of international rules until there has been a recognition of belliger-
ency. The Convention was signed by 42 States, and has so far
been ratified or adhered to by 17 States, including Great Britain
and a majority of the greater Powers. Its requirements, so far as
they extend, will probably be observed in future wars between civil-
ized States. But their ineffectiveness as a safeguard against pre-
cipitancy in the making of war in a case where either Power is in-
tent on hostilities, is illustrated by the events that attended the
44
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
opening of the Turco-Italian war of 1911. On this occasion the
Italian Government, after making some show of complaint as regards
grievances alleged to have been suffered at the hands of Turkey, des-
patched on the 26th September by cipher telegram an ultimatum to
the Turkish Government, with 24 hours' grace from the date of
presentation. This was presented at Constantinople on the morning
of the 28th September. A reply was immediately despatched by the
Ottoman Government but was pronounced to be unsatisfactory. In
the result a declaration of war was issued by Italy on the 29th Sep-
tember, and delivered to the Ottoman Government on the same day;
whilst a notification of the existence of a state of war was simultan-
eously issued to other Powers. Despite the limits imposed by custom
and convention, the opening of hostilities still appears to be mainly a
question of strategy.
Cobbett, pt. II, pp. 17–19.
The Congress shall have the Power
(11) To declare War, grant Letters of Marque and Reprisal, and
to make Rules concerning Captures on Land and Water;
The Constitution of the United States, Art. I, s. 8, cl. 11.
Surprise still possible.—Nothing in the foregoing rule [Art. 1,
Hague Convention III, 1907] requires that any time shall elapse
between the actual declaration of war and the commencement of hos-
tilities. It is still possible, therefore, to make a sudden and unex-
pected declaration of war and thus surprise an unprepared enemy.
U. S. Manual, p. 17.
The “ Convention Relative to the Opening of Hostilities,” 1907,
binds the contracting Powers, in the case of war between two or
more of them, not to begin hostilities without previous and explicit
warning in the form of a reasoned declaration of war, or of an ulti-
matum with a conditional declaration of war. There is, however,
nothing to impose any period of delay between the issue of notifica-
tion and the beginning of hostilities. Sudden and unexpected dec-
larations of war for the purpose of surprising an unprepared enemy
are in no wise rendered impossible. *
The Convention is valuable from the legal and commercial point
of view, especially in a maritime war, since it compels belligerents
themselves to fix and announce a definite date which is to be regarded
as the beginning of hostilities and after which they are entitled to
exercise the rights of belligerency and to exact from neutrals the
obligations of neutrality.
Edmonds and Oppenheim, arts. 8 and 10.
Article 1, Hague Convention III, 1907, is identical with section 1,
Austro-Hungarian Manual, 1913.
COMMENCEMENT OF WAR.
45
The Eliza Ann, 1 Dodson, 244.
The main question here was whether, at the time of the capture,
Sweden could be said to be at war with Great Britain and the ordi-
nary incidents of war to attach, having regard to the fact that the
declaration of war was unilateral only. A similar question was
raised at the Hague Conference of 1907, but appears to have been
left unanswered. In the case of the Eliza Ann it was held that a
declaration of war, even though unilateral, sufficed to establish a
state of war between the parties, with all its attendant consequences,
including the right of capturing enemy property within the terri-
torial waters of either belligerent. And the reasoning adopted shows
this to be equally applicable in a case where the war originates, not
in a declaration, but in some act of force done by one party with
intent of war, even though by the municipal law of either State some
particular authority alone may have power to declare war before-
hand; for, at bottom, war is a question of fact, and once it exists in
fact then all its legal incidents will attach, irrespective of the legality
of its commencement. Nor is this rule affected, in its results and as
between the belligerents themselves, by the provisions of the Hague
Convention, No. 3 of 1907. On the other hand, the mere imminence
of war will not produce this result. So, in Janson v. Driefontein Con-
solidated Gold Mines (1902, A. C. 484), it was pointed out that “no
amount of strained relations" could be said to establish a state of
war so as to affect the subjects of either country in their commercial
or other transactions; for the reason that the law recognized a state
of peace and a state of war, but knew nothing of an intermediate
state which was neither the one nor the other. Nevertheless, the mere
imminence of war will justify some precaution or delay on the part
of subjects of either of the Powers affected, and may thus indirectly
affect their commercial relations. So, in the case of the Teutonia
(1870, L. R. 4 P. C. 171), a Prussian vessel under an English charter
had received orders to proceed with her cargo to Dunkirk, in France;
on arriving off that port on the 16th July, 1870, the master received
information that war had broken out between France and Prussia,
although in fact war was not declared until the 19th July; he there-
upon proceeded to Dover for enquiry, by which time war had actu-
ally broken out. In these circumstances it was held by the Privy
Council that, although the ship could in fact have entered Dunkirk
as required by the charterer on the 16th July, yet the taking of a
reasonable time for enquiry was legitimate; and that, inasmuch as
the subsequent outbreak of war had relieved the owners of the ship
from the obligations of the charter in this regard, the consignees of
the cargo were not entitled to damages for nondelivery at Dunkirk.
Cobbett, pt. II, pp. 10, 11.
.
EFFECT OF WAR ON INDIVIDUALS-ENEMY CHARACTER OF
PERSONS.
The first question which arises upon this branch of the subject is,-
who is an enemy? And here some distinction must be made between
person and property. The character of an enemy appears to be in-
delibly impressed upon the person, according to the Municipal Law of
England and the North American United States, by the allegiance
which springs from the place of birth, or origin (and also from the
place of domicile, when that domicile has been formally acquired, at
the instance of the individual, under the authority of the State. It
is for the individual, who has so acted, to take good heed that he be
not taken in arms, either against the country of his origin, or against
the country of his formal adoption; for the Government of each coun-
try will be entitled to treat him as a traitor.
Phillimore, vol. 3, p. 127.
Domicile is, to a certain extent, another test of belligerent character.
This circumstance imposes a hostile character upon the property,
though not necessarily upon the person of the domiciled individual
The question has been much considered in the Prize Courts of Eng-
land and the North American United States. They have acted upon
the principle laid down by Bynkershoek, and it is now a well-estab-
lished rule, that every person is to be considered as belonging to that
country where he has his domicile, whatever may be his native or
adopted country.
Thus the masters and crews of ships are deemed to possess the na-
tional character of the ships to which they belong during the time of
their employment; and even if a person goes into a belligerent country
originally for temporary purposes, he will not preserve his neutral
character, if he remains there several years, paying taxes, etc. And a
neutral Consul, resident and treating in a belligerent country, is, as to
his mercantile character, deemed a belligerent of that country; and
the same rule applies to the subject of one belligerent country resident
in the country of its enemy and carrying on trade there; but the char-
acter acquired by mere domicile ceases upon removal from the coun-
try. The native character easily reverts, and it requires fewer circum-
stances to constitute domicile in the case of a native, than to impress
the national character on one who is originally of another country;
and in his favor, a party is deemed to have changed his domicile, and
his native character reverts, as soon as he puts himself in itinere to
return to his native country, animo revertendi.
46
ENEMY CHARACTER OF PERSONS.
47
In general, a neutral merchant trading in the ordinary manner
with a belligerent country, does not, by the mere accident of his
having a stationed agent there, contract the character of the enemy.
But it is otherwise if he be not engaged in trade upon the ordinary
footing of a neutral merchant, but as a privileged trader of the
enemy, for then he is in effect carrying on a hostile trade. And the
same remark applies if his agent carry on a trade, which is not clearly
neutral, from the hostile country; if a person be a partner in a house
of trade in an enemy's country, he is, as to the concerns and trade
of that house, deemed an enemy, and his share is liable to confisca-
tion as such, notwithstanding his own residence is in a neutral coun-
try, for the domicile of the house is considered in this respect as the
domicile of the partners. But if he has a house of trade in a neutral
country, he has not the benefit of the same principle; for if his own
personal residence be in the hostile country, his share in the property
of the neutral house is liable to condemnation. A man may have
commercial concerns in two countries, and if he acts as a merchant of
both he is liable to be considered as a subject of both, with regard
to the transactions respectively originating in both countries; but
shipments made by an enemy's house on account and risk, bonâ fide
and exclusively, of a neutral partner or a neutral house, are not sub-
ject to confiscation as prize of War. However, if a neutral be en-
gaged, in peace, in a house of trade in the enemy's country, his
property so engaged in the house is not, at the commencement of
War, confiscated; but if he continues in the house after the knowledge
of the War, it is liable, as above stated, to confiscation. It is a set-
tled principle, that traffic alone, independent of residence, will, in
some cases, confer a hostile character on the individual; and if a
neutral be engaged in the enemy's navigation, it not only affects the
peculiar vessel in which he is employed, but all other vessels belong-
ing to him that have no distinct national character impressed upon
them.
Phillimore, vol. 3, pp. 141–144.
When war is duly declared, it is not merely a war between this and
the adverse government in their political characters. · Every man is,
in judgment of law, a party to the acts of his own government, and a
war between the government of two nations is a war between all the
individuals of the one and all the individuals of which the other
nation is composed. Government is the representative of the will
of all the people, and acts for the whole society. This is the theory
in all governments; and the best writers on the law of nations concur
in the doctrine, that when the sovereign of a state declares war
against another sovereign, it implies that the whole nation declares
war, and that all the subjects of the one are enemies to all the sub-
48
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE:
jects of the other. Very important consequences concerning the
obligations of such subjects are deducible from this principle.
Kent, vol. I, pp. 67, 68.
It becomes important, in a maritime war, to determine with pre-
cision what relations and circumstances will impress a hostile charac-
ter upon persons and property; and the modern international law of
the commercial world is replete with refined and complicated distinc-
tions on this subject. It is settled that there may be a hostile charac-
ter merely as to commercial purposes, and hostility may attach only
to the person as a temporary enemy, or it may attach only to
property of a particular description. This hostile character, in a
commercial view, or one limited to certain intents and purposes only,
will attach in consequence of having possessions in the territory of
the enemy, or by maintaining a commercial establishment there, or
by a personal residence, or by particular modes of traffic, as by sail-
ing under the enemy's flag or passport. This hostile relation, grow-
ing out of particular circumstances, assumes as valid the distinction
which has been taken between a permanent and a temporary alien
enemy. A man is said to be permanently an alien enemy when he
owes a permanent allegiance to the adverse belligerent, and his
hostility is commensurate in point of time with his country's quar-
rel. But he who does not owe a permanent allegiance to the enemy
is an enemy only during the existence and continuance of certain
circumstances. A neutral, for instance, said Ch. J. Eyre, can be an
alien enemy only with respect to his acts done under a local or tem-
porary allegiance to a power at war, and when his temporary alle-
giance determines, his hostile character determines also.
Kent, rol. I, p. 86; Sparenburgh v. Bannatyne ; 1 Bos. & P., 163.
A war duly declared, or officially recognized, is not merely a
contest between the governments of the hostile states in their political
character or capacity; on the contrary, its first effect is to place every
individual of the one state in legal hostility to every individual of
which the other is composed, and these individuals retain the legal
character of enemies, in whatever country they may be found.
Halleck, p. 356.
[When] a state has declared war, every citizen is bound to assist in
carrying it to a successful conclusion, whatever may be his individual
opinion of the necessity or propriety of the resort to arms by his own
government.
Halleck, p. 38.1.
[The hostile character of the inhabitants of two states at war with
each other] results from political ties, and not from personal feelings
or personal antipathies; their status is that of legal hostility, and
ENEMY CHARACTER OF PERSONS.
49
not of personal enmity. So long as these political ties continue, or
so long as the individual continues to be the citizen or subject of one
of the belligerent states, just so long does he continue in legal hos-
tility toward all the citizens and subjects of the opposing belligerent.
Public enemies are such, whatever may be their occupation, and in
whatever country they may be found.
Halleck, pp. 411, 412.
Allies of the enemy.
As a general rule, it is not necessary to make a formal declaration
of war against the associates of the enemy before treating them as
belligerents.
The nature of their obligations, or the character of their acts,
makes them public enemies, and puts them in the same position
toward us as if they were principals in the war. Our belligerent
rights against them commence, in some cases, with the war, and,
in others, with their first act of hostility against us. The existence
of the alliance, with the acknowledgment of its obligation, and a
preparation for carrying on the war, would make them public
enemies, even before they actually take part in the military opera-
tions.
Halleck, pp. 423, 424.
Expatriation, in time of war.
It seems to be a well settled principle of international law that,
during the existence of hostilities, (flagrante bello,) no subject of a
belligerent can transfer his allegiance, or acquire a foreign domicile
by emigration from his own country, so as to protect his trade either
against the belligerent claims of his own country, or against those
of a hostile power. In other words, his allegiance continues the
sạme, and his native character is unaffected by his change of resi-
dence. This doctrine rests on the ground that to desert one's own
country in time of war, is an act of criminality, and that if a citizen
removed to another state, his allegiance is still due to his sovereign,
and he is as much bound to abstain from trade with a public enemy,
as if he had remained at home; and his property, as that of an
enemy, continues to be just as liable to seizure and confiscation, by an
opposite belligerent. This principle is sanctioned by the most ap-
proved writers on international law, and has been expressly affirmed
by the courts of the United States. The doctrine above announced, is
not in conflict with that contended for by some writers, that a
citizen has a general right of expatriation in time of peace, and that
the assent of his government to seek change of allegiance and national
character, is implied in the absence of any prohibition. Nor is it
50
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
to be construed as denying to a citizen the right to change his alle-
giance and national character in time of war, with the express consent
of the state, and with authentic renunciation of preexisting citizen-
ship. But expatriation, in time of war, does not result from a change
' of residence, and the general consent of the state to emigration,
which is presumed, in time of peace, from the absence of any general
prohibition. If so, it might be appealed to as a mask to cover de-
sertion, or treasonable aid to the public enemy.
Halleck, pp. 717, 718.
0
Effect of military occupation.
Mere military occupation of a territory by the forces of a bellig-
erent, (without confirmation of conquest by one of the modes recog-
nized in international law.) does not, in general, change the national
character of the inhabitants. It will be shown in a subsequent chap-
ter, that the allegiance of such inhabitants is temporarily suspended,
but not actually transferred to the conqueror. They owe to such
military occupants certain duties, but these fall far short of a
change of the allegiance due to their former sovereign. But if the
military occupation be by a power in amity with the former sov-
ereign, and has taken place with the evident concurrence of those
acting under his authority, a prior and formal cession is presumed.
The national character of the inhabitants is therefore deemed to be
changed by the presumed transfer of their allegiance. Thus, the
occupation of the Ionian republic by French troops, by the voluntary
surrender of the Russian authorities, then at peace with France, was
deemed sufficient to repel the supposition that such occupation was
hostile and temporary, and therefore sufficient to raise the presump-
tion of a formal cession, although none was proved. So of the in-
habitants of territory in the possession and under the government of
the conqueror prior to cession or complete conquest, for every com-
mercial and belligerent purpose they are considered by other coun-
tries as subjects of the conqueror, notwithstanding that he himself
may regard them as aliens with respect to the inhabitants of his other
dominions. Upon this point, however, there are conflicting decisions,
belligerents having sometimes regarded territory in the military
occupation of their enemy as friendly, and sometimes as hostile,
according to their own interests and the peculiar circumstances of
the case. If the sovereign power of the state choose to permit a con-
tinuance of commerce with them, the courts of the same state will
regard them as friendly, and vice' versa. (Wildman, Int. Law, vol.
2, p. 113; Duer, On Insurance, vol. 1, p. 438; The Roletta, Edw. Rep.,
p. 171; Benson v. Boyle, 9 Cranch Rep., p. 191; Hagedorn v. Bell,
1 Maule and Selw. Rep., p. 450; Westlake, Private Int. Law, $ 21.)
Halleck, pp. 718–719:
ENEMY CHARACTER OF PERSONS.
51
Effect of conquest or cession.
It will also be shown hereafter that, where the conquest is con-
firmed, or in any other way made complete, the allegiance of the in-
habitants who remain in the conquerer territory is transferred to the
new sovereign. The same effect is produced by an ordinary cession
of such territory. In either case the national character of the in-
habitants who remain, is deemed to be changed from that of the
former to the new sovereign, and in their relations with other nations
they are entitled to all the advantages, and are subject to all the dis-
advantages, of their new international status.
Halleck, p. 719.
Effect of cession by treaty.
But mere cession by treaty does not of itself operate as an imme-
diate transfer of the allegiance of the inhabitants of the ceded terri-
tory. They remain subjects of the power to which their allegiance
was originally due, until the solemn delivery of the possession by
the ceding state, and an assumption of the government by that to
which the cession is made. The actual delivery of the possession,
and the actual exercise of the powers of government must be clearly
shown. In a case of capture of property belonging to a merchant of
New Orleans, after the cession of Louisiana by Spain to France,
which, if the owner was a French subject, was hostile, and if a
Spanish subject, was neutral, Sir William Scott decreed the restora-
tion, on the ground that the evidence of any actual delivery of the
territory to any French authority, was insufficient and unsatisfac-
tory. (Wildman, Int. Law, vol. 2, p. 115; Duer, On Insurance, vol. 1,
p. 438, The Fama, 5 Rob. Rep., p. 106.)
Halleck, p. 719.
The nationality of individuals in war depends not on their origin
or their naturalization, but upon their domicil. He is a neutral
who is domiciled of free choice in a neutral country, and he an
enemy who is domiciled in an enemy's country. Hence
1. As domicil can be easily shaken off, a person in the prospect of
war, or on its breaking out, may withdraw from the enemy's to
another country with the intention of staying there, and thus change
his domicil. If he should return to his native country, fewer cir-
cumstances would be required to make out intention than if he
betook himself to a foreign territory. If against his will and by
violence at the breaking out of war he was detained in the bellig-
erent country, [a fact of which he should try to obtain proof by
application for a pass,] his longer stay would be regarded as the
forced residence of a stranger, and probably all disadvantageous
legal consequences of his domicil there would cease.
52
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
2. If a country is conquered during a war, its national character
changes, although it may be restored again at peace, and so the
nationality and liabilities of its inhabitants engaged in business
change.
3. But a person having a house of commerce in the enemy's country,
although actually resident in a neutral country, is treated as an
enemy so far forth as that part of his business is concerned, or is
domiciled there quo ad hoc. On the other hand, a person having a
house of commerce in a neutral country and domiciled among the
enemy, is not held to be a neutral. This is the doctrine of the
English courts, adopted by the American. “It is impossible,” says
Dr. Wheaton (“ Elements,” iv. 1, $20), “in this not to see strong
marks of the partiality towards the interests of captors, which is
perhaps inseparable from a prize code, framed by judicial legisla-
tion in a belligerent country, and adopted to encourage its naval
exertions."
In general, property follows the character of its owner. Thus neu-
tral ships are ships owned by neutrals, that is by persons domiciled
in a neutral country, and the same is true of goods. Hence in part-
nerships, if one owner is a neutral and in a neutral country and the
other an enemy, only the property of the latter is liable to capture.
But here we need to notice-
1. That ships cannot easily transfer their nationality on a voyage,
the act of so doing being presumptive evidence of a fraudulent
intention to screen them from the liabilities of their former na-
tionality.
2. That when a ship sails under a hostile flag, she has, by whom-
soever owned, a hostile character.
3. If a neutral's ship sails under an enemy's license to trade, she
becomes hostile; for why should she have the advantages of a close
connection with the enemy without the disadvantages?
4. If a neutral is the owner of soil in a hostile country, the product
of such soil, exported by him and captured, is considered hostile.
This is on the principle that the owner of soil identifies himself, so
far forth, with the interests of the country where his estate lies.
5. In a revolted province waging regular war there are no loyal
persons whose property is distinguished from that of the other in-
habitants, but all are jurally enemies, unless detained by force within
the borders when desirous to escape. The Supreme Court of the
United States (Black's Reports, ii., 635–639) decided that “all per-
sons residing within this [i. e., the Confederate] territory, whose
property may be used to increase the revenues of the hostile power, are
in this contest liable to be treated as enemies, though not foreigners.'
Such a decision presupposes hostile territory and not hostile persons
2
ENEMY CHARACTER OF PERSONS.-
53
only; and the territory could be hostile, only because the existing
supreme power was hostile to the United States.
Woolsey, pp. 296–298.
Identification with the enemy.—A neutral subject who takes per-
manent employment, civil or military, in the service of the enemy, is
considered an enemy for all purposes. If he contracts to perform
specific services, he is held to be hostile to the extent of such services.
Persons who are habitually engaged in certain other professions
under the enemy's flag, such as that of captain, sailor, supercargo,
are properly considered to be enemies.
Latifi, p. 79.
Individuals who remain within the boundaries of belligerent terri-
tory, even though they are subjects of neutral Powers, acquire enemy
character. Locality, and not nationality and allegiance, becomes the
criterion.
Phillipson, p. 27.
Criterion of enemy character-Domicile.
It was said above that locality and not nationality may, under cer-
tain circumstances, become the criterion of enemy character. In
view of the seizure of property, the confiscation of debts and credits,
and the interference with contracts, it is important to determine under
what conditions an individual is regarded as assuming enemy char-
acter. As a general rule all subjects of belligerents and their prop-
erty bear enemy character, and all subjects of neutral States with
their property bear neutral character. But under certain condi-
tions subjects of enemy States and their property may be regarded
as possessing neutral character, and subjects of neutral States and
their property enemy character. And it may even happen that a
subject of a belligerent Power may in certain respects become vested
with enemy character as between himself and his own State. In the
words of Sir Travers Twiss, "an individual cannot be permanently
resident in two countries; and wherever he is permanently resident,
there he is contributing by his industry and general wealth to the
strength of the country, and to its capacity to wage war.
There can
be therefore no injustice in regarding the property of such a person
as forming part of the common stock of the enemy nation.” The term
domicile is used in two senses, firstly, regardless of commercial inter-
course and more in relation to the person, and secondly, in direct
reference to the house of trade and to the locality of the material
property. In the first, that is, the ordinary meaning, domicile is
the criterion of enemy character; but the second introduces an im-
54
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
portant modification of the first in considering property applied
in any trade or undertaking in the enemy territory to be stamped
with enemy character irrespective of the owner's nationality or reg-
ular domicile. “Such a trade," says Twiss, “so carried on, has a
direct and immediate effect in aiding the resources and revenue of
the enemy, and warding off the pressure of the war. It subserves
his manufactures and industry, and its whole profits accumulate and
circulate in his dominions and become regular objects of taxation
in the same manner as if the trade were pursued by native subjects.
There is no reason, therefore, why he who thus enjoys the protection
and benefits of the enemy's country should not, in reference to such
a trade, share its dangers and its losses.” The treatment of contra-
band goods and of analogues of contraband comes within this cat-
egory.
Subjects of the belligerent Powers residing abroad are for the time
being regarded as neutrals, and hence their property, even if found
on captured enemy ships, is not liable to confiscation. Thus, in
Bell v. Reid, it was laid down that a British subject domiciled in a
neutral State may, as a subject of that State, lawfully carry on com-
mercial intercourse with an enemy of this country, and accordingly
an insurance effected by him in this country of his ships or goods
employed in such intercourse is lawful. In another case it was de-
cided that no person, although of enemy nationality, who resides
or carries on trade in British, allied, or neutral territory, is consid-
ered as enemy. On the contrary, subjects of neutral States domi-
ciled within the territory of one of the belligerents may be consid-
ered by the other belligerent as having acquired enemy character,
and thus render themselves liable to all the measures consistent with
the laws and regulations of war. It has often been declared in
British Courts that a British subject, or a subject of a neutral State,
adhering to an enemy, as by voluntary permanent residence, or by
trading in the enemy's country, is in the same position in regard to
disability as an alien enemy. Subjects of belligerents domiciled
on each other's territory and permitted to remain after the outbreak
of hostilities are vested with enemy character in the eyes of the
belligerent to whom they originally owed allegiance; though the
private property of such subjects loses its enemy character in the
eyes of the other belligerent. If an English subject employ a neu-
tral to trade for him in the territory of an enemy of this country,
the neutral is looked upon as a mere agent, and the transaction is
consequently illegal. The Supreme Court of the United States has ,
decided that the property of American citizens domiciled in an
enemy's country, though shipped before a knowledge of the out-
break of hostilities, was, by the commencement of war, vested with
& hostile character, and the goods were condemned as lawful prize.
ENEMY CHARACTER OF PERSONS.
55
Finally, property of foreigners on enemy territory or incorporated
in enemy trade may acquire enemy character, even if such foreigners
are not domiciled there.
Philipson, p. 33–37; Twiss, Law of Nations, p. 303; Bell v. Reid, 1
Maule & Selwyn, 726.
The outbreak of war brings in its train many changes in the
juristic relations of the various component units of the States con-
cerned. First and foremost there is the great and complete change
in the mutual relations of the units most concerned in war-the
armed forces of the several States. From being, in one another's
eyes, merely uninteresting and rather absurd foreigners talking an
outlandish tongue, each suddenly becomes an element of vital im-
portance in the other's scheme of things-an element whose sole func-
tion is to do the other element grievous bodily harm and to count
the deed to itself for righteousness. But the effect of the outbreak
of war is not confined to the combatants in each country; on the
general body of citizens, if it does not mean for them such a direct
and complete negation of the golden rule as it does for the armed
forces, it entails many new obligations and restrictions. Amicable
relations come to an immediate end. The subjects of the enemy
State cease, to a large extent, to be men and brothers. One may not
trade with them, or contract with them, or sue them or be sued by
them, and these restrictions apply equally to neutral subjects domi-
ciled in one of the belligerent countries.
Spaight, pp. 25, 26.
At the close of the middle ages the whole matter was governed
with unflinching consistency, at least in theory, by the principle of
the solidarity between a prince and his subjects and between a city
and its citizens. The diffidatio which introduced the state of war and
made prince or city the enemy of prince or city had for its necessary
consequence that each prince or city was the enemy of the subjects
or citizens of the other, and that the subjects or citizens of each were
individually the enemies of those of the other. Peaceful relations
were not modified but destroyed, and legal relations during the war
there were none, in whatever degree Christianity or chivalry might
mitigate practice. Hence the proclamation which accompanied a
diffidatio did not merely require the subjects to whom it was ad-
dressed to capture the property of the other prince and the persons
and property of his subjects, as in the case of general reprisals. It
went on to require them to break off all commerce, that is all peaceful
dealing with the enemies, and to attack them indiscriminately,
courir sus aux ennemis- a famous formula which meant to kill them,
56
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tirke them captive and pillage them. If any authority were wanted
for what lies on the surface of the history of those times, it may be
found in the statement of Grotius that "a war declared against him
who has the supreme authority in a population is considered to be
declared against all his subjects and those who may join themselves
to him as allies.” (3. 3. 9.)
In contrast with what has been described, modern ideas and prac-
tice do not present the same simplicity and consistency. They can-
110t be stated without distinguishing between what may be called the
military and the civil aspects of war, the former comprising what is
observed or deemed proper in the application of force by sea or land,
the latter what is observed or deemed to be legal in courts of justice.
It is recognized on the military side of war that the true principle
is laid down by Montesquieu, namely that “nations ought to do one
another in peace the most good, and in war the least evil, that is
possible without injuring their true interests.” In accordance with
that principle, no exercise of force is now placed for its legal justifi-
cation on the ground that the individual against whom it is directed
or who suffers by it is an enemy. It is not deemed lawful to affect
an individual except so far as doing so may be a necessary or at least
an important means of breaking down the resistance of the enemy
state. To that extent he may be considered as identified with his
state for the purpose of the war. The case which presents the
strongest appearance to the contrary is that of the capture and con-
demnation of the property of the enemy's subjects at sea where no
directly military reason, such as breach of a blockade or carrying con-
traband of war, is involved; but even that practice is not now upheld
by anyone except on the ground of the contribution which it may
make to depriving the enemy state of the means of carrying on the
war. That this is the accepted view of the relation of individuals
to war in its military aspect may be shown by the following quo-
tation from Lueder, who of all modern authorities was one of the
least disposed to limit military exigencies.
“ The commencement,” he says, “of war and the entry of the law of war on
the scene introduce for the subjects of the belligerent states the condition of
war (kriegsstand), that is the special relation which in consequence of the out-
break of war arises between them and the opposite party. All the subjects of
the states which are at war are under that condition, though not in the same
degree, notwithstanding that the rule holds that peaceable private persons be-
longing to the belligerent states are not mutually enemies. For even those
who take no part in the operations of war have to bear, in the measure of what
has been above established in general and in the following pages will be car-
ried out in detail, certain burdens, restrictions, sacrifices, disadvantages, in
one word duties towards the enemy state, which war naturally brings with it.”
Holtzendorff's Handbuch des Völkerrechts, vol. 4, Sec. 90, p. 371.
Westlake, vol. 2, pp. 36, 37.
ENEMY CHARACTER OF PERSONS.
57
After the foregoing general contrast between the ancient and
the modern, the latter of which will have in the sequel to be drawn
out in detail, we must say what can be said in general terms as
to the manner in which the passage from the one to the other was
made. There was the progressive influence of Christianity and
humanity, and a great effect was produced by Grotius who, while
adopting as the strict theory of war what he found in the jus nat-
urale and the current just gentium, insisted on the duty of temper-
ing it in practice by the charity which the divine law enjoined. In
aid of that charity came the habit, and indeed the necessity, of
regularising 'war which the institution of great standing armies and
fleets brought with it. In Vattel the new practice begins to under-
mine the theory. He writes in 1758 that although the old formula
óf courir sus was still a part of declarations of war, usage had come
to interpret it as obliging indeed all subjects to seize the persons and
property of enemies when falling into their hands, but not as invit-
ing them to undertake any offensive expedition without commission
or particular order (1.3, Sec. 227). The declaration of war of 2
January 1762 by Great Britain against Spain is based on the view
so expressed. It omits the formula of courir sus, and calls on the
various commanders and officers therein enumerated, “and all other
officers and soldiers under them by sea and land, to do and execute
all acts of hostility in the prosecution of this war against the king
of Spain, his vassals and subjects, willing and requiring all our
subjects to take notice of the same, whom we henceforth strictly
forbid to hold any correspondence or communication with the said
king of Spain or his subjects": Twiss-War, sec. 45. Thus non-
intercourse was maintained for the civil aspect of war while an
advance was made in regularising war on its military side.
Not long afterwards Rousseau essayed to put the ideas which
were gaining ground into a philosophical form. “War," he wrote
(Contrat Social, liv. 1, ch. 4), “is not a relation of man to man
but of state to state, in which individuals are enemies only acci-
dentally, not as men nor even as citizens but as soldiers, not as
members of their country but as its defenders. In fact a state can
only have other states for enemies and not men, seeing that no true
relation can be established between things of different natures."
This doctrine Rousseau, with his usual levity, declared to be “con-
formable to the maxims established in all times and to the constant
practice of civilised peoples.” I have criticised it as follows. “If
no true relation can be established between states and men, it must
be impossible for men not only to be the enemies but also to be the
citizens or members of a state, which in the same passage they de-
scribed as being. And if it is only as soldiers that men are enemies
even accidentally, every measure employed in war with reference to
110678-19
58
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the civil population, including the most moderate requisitions, con-
tributions and interferences with their liberty, must be unlawful.”
But in a revolutionary age the very extravagance of Rousseau's
language helped to set it up as a standard for those who desired
to limit the overthrow by war of all peaceful relations. It was
employed with little or no variation by Portalis, in his discourse on
the opening of the French prize court in 1801, and is often quoted
with rather unreflecting approval, mainly for the sake of its denial
of war as a relation of individual to individual, which element of
it may be pronounced philosophically sound notwithstanding the
hesitation of courts of law. The other element, that war is a rela-
tion of state to state in which individuals are involved only as taking
an active part in the defense of their country, does not practi-
cally delude anyone into denying the identification even of civilians
with their state so far as necessary for the purposes of war.
Westlake, vol. 2, pp. 39, 40.
An alien enemy, in English law, means, generally, an alien who
belongs to a country which is at war with Great Britain. In deal-
ing with this question, however, the judgment in. Sparenburgh v.
Bannatyne draws a distinction between a permanent enemy char-
acter and a temporary or adventitious one. The former is stated to
depend on allegiance; this being the form in which English law
expresses its conception of nationality. According to this principle,
every person in allegiance to the enemy State is deemed primâ facie
to have an enemy character; whilst everyone in allegiance to a
neutral State is deemed primâ facie to have a neutral character.
From this it would seem that the English law, in determining enemy
character, starts equally with the continental systems from the stand-
point of nationality. And although for many purposes “nation-
as a test of enemy character in war has, as we shall see,
now been displaced by “domicile," there are still cases in which it
remains operative. So, if on the outbreak of war it were found
necessary for military reasons to expel alien enemies from British
territory—a measure still permissible, although now unlikely to be
resorted to—the test of nationality would still be applied; whilst
it would also apply, under the municipal law, to cases where a
British subject, even though domiciled elsewhere, was found in
arms against his native country. And this primary test of enemy
or neutral character, although liable to be suspended by other tests,
is always liable to revert when the latter cease to apply. A tem-
porary or adventitious enemy character, on the other hand, will
attach to persons who are bound to the enemy State by some par-
ticular bond of association, whether local or personal.. This will
include (1) persons who are found in the military or naval service:
ality"
ENEMY CHARACTER OF PERSONS.
59
of the enemy; (2) persons who are found serving on board even
private vessels of the enemy, subject now, however, to the alleviations
provided by the Hague Convention, No. 11 of 1907; (3) persons who
are engaged in the enemy navigation, or identified with the enemy
by the grant of exceptional trading privileges; and (4) persons who
are domiciled or reside and carry on trade in the enemy territory.
And similar principles are recognized by the American Courts;
although with some occasional divergence as regards their applica-
tion.
Cobbett, pt. 2, pp. 21, 22; Sparenburgh v. Bannatyne, 1 Bosanquet and
Puller, 163.
66
General Notes.-Enemy Character.—Under the earlier system, on
the outbreak of war between two Sovereigns, all those in allegiance
to one became “enemies” of those in allegiance to the other. Nor
was there originally any distinction of degree recognized in the attri-
bution of enemy character. But with the recognition of the distinc-
tion between combatants and non-combatants, and with the lapse of
the notion of personal hostility between those who are legally ene-
mies, an enemy character” came to attach to different classes of
persons in different degrees, and with different consequences. At
the present time (i) an “enemy character” in the sense of “active”
enmity attaches to all persons, whether subjects or not, who are en-
rolled in the armed forces of the enemy, or who otherwise assist him
in the conduct of hostilities; such persons being subject to all those
forms of violence permitted in war, as well as to such commercial
and civil disabilities as may attach to the “enemy character” either
generally or in any particular system. As regards neutrals, how-
ever, it is now provided in effect by the Hague Convention, No. 5
of 1907, Art. 17, that persons so engaged shall not by reason of their
being neutrals be treated more severely than would be the subjects
of the other belligerent. (ii) Next, an enemy character,” in a more
limited—but still in an active sense—may be said to attach to all
persons, whether subjects or not, who are found in the employment
of the enemy State; such persons being liable to arrest and detention
as well as to the civil disabilities incident to that character, although
not otherwise exposed to violence. It is, however, provided by the
Hague Convention, No. 5 of 1907, Art. 18, that the rendering by a
neutral to a belligerent of services in the matter of police and civil
administration shall not have the effect of conferring an enemy
character in the sense just described; and, further, that the furnish-
ing of supplies or loans by a neutral to one belligerent shall not have
that effect, provided that the neutral does not live in and that the
supplies do not proceed from the territory belonging to or occupied
by the other belligerent. In the same category also, we may class
66
60
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
seamen who are found on enemy merchant vessels; such persons, even
though neutrals by nationality, having formerly been liable to arrest
and detention during the war by reason of their fitness for use on
board warships or transports of the enemy; although this is now
subject to the alleviations provided by the Hague Convention, No.
11 of 1907, Arts. 5–8. (iii) Finally, an “enemy character," in a
merely passive sense, is attributed to all persons who are deemed to
be identified as by nationality according to one view, or by domi-
cile according to another—with the enemy State, for the purposes
of the war; such persons being subject during the continuance of
the war to certain civil or commercial disabilities, which vary, how-
ever, in different systems; and their property on the sea being also
liable to maritime capture unless protected by the neutral flag. But
in the determination of “enemy character” in this last sense, there
is a marked difference between the principles followed by different
States or groups of States; some adopting for this purpose the
criterion of nationality, whilst others adopt that of domicile, al-
though not in either case to the exclusion of certain minor or
subordinate tests. Before proceeding to consider this, however, it
is desirable to notice that all persons residing or coming within the
sphere of belligerent operations are subject to the ordinary inci-
dents of war, in so far as these affect non-combatants. At the Hague
Conference, 1907, it was indeed proposed to confer special privi-
leges on persons of neutral nationality who might find themselves
in this position, by exempting them from requisitions for serv-
ices having a direct bearing on the war, as well as from con-
tributions, and from the destruction of their property save in
case of necessity and on condition of indemnity; but in the result
no agreement on the subject was arrived at. Nor in any case
would the grant of such exemptions seem just or desirable. The
Final Act, indeed, embodies a voeu that the Powers should regulate
by special treaties the position, as regards military charges, of for-
eigners resident within their territories; although without much
prospect of any general compliance.
Nationality and Domicile as Tests of Enemy Character.-In this
connection we need again to recall that national character originally
depended on allegiance, and that an outbreak of war between two
Sovereigns served to establish a relation of legal if not personal
enmity between all who respectively owed allegiance to them. Sub-
sequently two changes appear to have taken place. One of these,
which has already been referred to, was the recognition of varying
degrees in the attribution of the enemy character, and a mitigation
of its consequences in its minor forms. The other was that “alle-
giance ceased to be the sole or even the main test of enemy character
in war, and came to be replaced by “domicile"; this change being
ENEMY CHARACTER OF PERSONS.
61
attributable to the gradual strengthening of the territorial prin-
ciple, and the increasing recognition of trade and comnierce as
sources of strength in war. For some time, at any rate, the new
principle appears to have been very generally accepted. But at the
beginning of the 19th century, and under the influence of theories
inspired by the French Revolution, yet another change took place.
This originated in France, where the ('onseil des Prises in 1801, for-
mally discarded the test of domicile for that of nationality; hold-
ing that
a person must be deemed to retain the character of the
State of which he was a national, irrespective of his place of resi-
dence, unless and until such national character had been lost or re-
nounced. The principle thus enunciated by the French Courts ap-
pears to have been subsequently followed and adopted in most other
European countries; with the result that Continental opinion and
practice reverted, although in an altered form and freed now from
the old trammels of allegiance, to the personal as distinct from the
local test of enemy connection. Meanwhile the courts of Great
Britain and the United States were engaged in elaborating the doc-
trine of domicile; to which test both these States have ever since
continued to adhere. So there arose a notable divergence alike of
view and of practice as to the true criterion of enemy character. On
the one hand, Great Britain and the United States, and more re-
cently Japan, adopt“ domicile” as the main test of enemy character
in war; with the result that persons domiciled in the enemy country
are deemed to have a hostile character, and persons domiciled else-
where a non-hostile character, irrespective in either case of what
their nationality may be. On the other hand, most European and
other States adopt “nationality" as the main test of enemy char-
acter in war; with the result that subjects of the enemy State retain
the enemy character wherever they may reside, whilst the subjects
of neutral States retain their neutral character even though domi-
ciled in the enemy territory. At the same time neither of these
principles is exclusively followed or consistently applied by either
group of States. On the one hand, Great Britain and the United
States, whilst generally accepting the test of domicile, are never-
theless forced to revert to that of nationality in cases where domi-
cile would clearly be inapplicable. On the other hand, the States
which ordinarily adhere to the test of nationality, are forced, when
they come to deal with the incidents of war on land, to recognize
liability as depending on residence or domicile. The proposal which
was made at the Hague Conference of 1907 to confer a special status
on neutrals residing in belligerent territory, represents an attempt
to carry the European theory to its logical conclusion; but the pro-
posal was, as we have seen, ultimately rejected. Nor was it found
62
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
possible to reach any agreement on this subject on the occasion of
the Naval Conference of 1908–9. The Declaration of London, Art.
57, indeed, provides that the neutral or enemy character of a vessel
shall be determined by the flag she is entitled to fly, and to that
extent mitigates the present uncertainty. But with respect to goods,
Art. 58 merely provides that the neutral or enemy character of
goods found on board an enemy vessel shall be determined by the
neutral or enemy character of the owner; thus leaving open the
question as to how that character is to be determined. Hence the
conflict between the rival principles of nationality and domicile is
likely to continue until settled by some new Convention or by the
International Prize Court.
Why “ Domicile" is preferable.--Some contrast has already been
drawn between these competing principles in the domain of civil
status. Here we are concerned with them only as tests of “enemy
character” in war, and mainly for the purposes of maritime capture
and restrictions on trade. In this regard one needs to remember
that one of the chief aims of war is to weaken the enemy's resources,
by crippling his trade and striking at its instrumentalities, so far as
this may consist with the rights of neutrals. From this standpoint
“nationality” as a test of enemy character is based on what is no
doubt a traditional but at the same time often an illusory bond of
association. In attributing an enemy character to enemy nationals
who reside and trade in neutral States, it strikes really, not so much
at the interests of the enemy, as at those of the neutral State; whilst
in treating as “non-hostile” neutrals who reside and carry on trade
in the enemy State, it exempts from the operations of war an instru-
mentality which must necessarily be a potent source of strength to
one belligerent and of mischief to the other. “Domicile," on the
other hand, as a test of enemy character for these purposes, rests on
a solid basis of actual identity of interest and ministration to the
enemy's resources. It treats as enemies all persons who, even
though neutral in point of nationality, yet reside and carry on trade
in the enemy State, for the reason that such persons are subject to its
control and contribute to its resources; and this, moreover, in virtue
of a position which they have voluntarily assumed, and are at liberty
to renounce. It refuses to treat as enemies persons who, even
though enemy nationals, reside and carry on trade in a neutral State,
for the reason that they are subject to the control of and identified
in interest with the neutral State rather than with the enemy. Even
as regards liability to the incidents of land warfare, the test of resi-
dence or domicile is eminently reasonable; for, even though it may
be true that neutrals residing in the belligerent State have no in-
terest in the quarrel, yet the liability in such cases is one which at-
taches ratione loci and not ratione personae, whilst in voluntarily
66
ENEMY CHARACTER OF PERSONS.
63
taking up their residence in the belligerent country neutrals must be
deemed to have accepted all risks reasonably incident thereto. To
apply any other test would in fact be to discriminate unfairly against
resident nationals.
Cobbett, pt. 2, pp. 26–30.
Vo alien who is a native citizen or subject, or a denizen of any
country, state, or sovereignty with which the United States are at
war, at the time of his application, shall be then admitted to become
a citizen of the United States; but persons resident within the United
States, or the Territories thereof, on the eighteenth day of June, in
the year one thousand eight hundred and twelve, who had before that
day made a declaration, according to law, of their intention to be-
come citizens of the United States, or who were on that day entitled
to become citizens without making such declaration, may be admitted
to become citizens thereof, notwithstanding they were alien enemies
at the time and in the manner prescribed by the laws heretofore
passed on that subject; nor shall anything herein contained be taken
or construed to interfere with or prevent the apprehension and re-
inoval, agreeably to law, of any alien enemy at any time previous to
the actual naturalization of such alien.
(Repealed by Act May 9, 1918. C. 69, § 2, 40 Stat.)
U. S. Statutes (1875), Sec. 2171, p. 382.
SEC. 2. That any American citizen shall be deemed to have ex-
patriated himself when he has been naturalized in any foreign state
in conformity with its laws, or when he has taken an oath of alle-
giance to any foreign state.
When any naturalized citizen shall have resided for two years in
the foreign state from which he came, or for five years in any other
foreign state it shall be presumed that he has ceased to be an Ameri-
can citizen, and the place of his general abode shall be deemed his
place of residence during said years: Provided, however, That such
presumption may be overcome on the presentation of satisfactory
evidence to a diplomatic or consular officer of the United States,
under such rules and regulations as the Department of State may
prescribe: And provided also, That no American citizen shall be
allowed to expatriate himself when this country is at war.
U. S. Revised Statutes, Act March 2, 1901, p. 1228.
The citizen or native of a hostile country is thus an enemy, as one
of the constituents of the hostile state or nation, and as such is sub-
jected to the hardships of the war.
Nevertheless, as civilization has advanced during the last century,
so has likewise steadily advanced, especially in war on land, the
64
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
distinction between the private individual belonging to a hostile
country and the hostile country itself, with its men in arms. The
principle has been more and more acknowledged that the unarmed
citizen is to be spared in person, property, and honor as much as the
exigencies of war will admit.
Private citizens are no longer murdered, enslaved, or carried off
to distant parts, and the inoffensive individual is as little disturbed
in his private relations as the commander of the hostile troops can
afford to grant in the overruling demands of a vigorous war.
The almost universal rule in remote times was, and continues to
be with barbarous armies, that the private individual of the hostile
country is destined to suffer every privation of liberty and protection,
and every disruption of family ties. Protection was, and still is
with uncivilized people, the exception.
In modern regular wars of the Europeans and their descendants
in other portions of the globe, protection of the inoffensive citizen
of the hostile country is the rule; privation and disturbance of priv-
ate relations are the exceptions.
Lieber, arts. 21-25.
Legal status.-“Public war is a state of armed hostility between
sovereign nations or governments." So that the first effect of war
between two states is to cause every subject of the one to become an
enemy of every subject of the other, since it is impossible to sever
the subjects from their state.
U. S. Manual, p. 18.
According to the British view, the first consequence of the ex-
istence of a condition of war between two States is that every sub-
ject of the one State becomes an enemy to every subject of the other.
For it is impossible to sever the subjects from their State, and the
outbreak of war between two States. cannot but make their subjects
enemies.
Edmonds and Oppenheim, art. 11.
Sparenburgh v. Bannatyne, 1 Bosanquet and Puller, 163, 1797.-
Eyre, Ch. J., said: “The question is, whether on the evidence pro-
duced in this case the plaintiff is to be considered as an alien enemy
at the time when the writ was issued? If he must be so considered,
I take it to be a necessary consequence that this action must fail.
The fact is, that this man, being a native of some part of Germany,
and therefore a neutral by birth, was found on board a ship belonging
to the enemies of this country, and was captured in actual hostility.
What, then, is his situation? Having been taken in the act of hos-
tility, he is either a pirate, or quoad that act of hostility a subject
ENEMY CHARACTER OF PERSONS.
65
of the prince or power under whose commission he acted. No doubt
this man, being a neutral by birth, committed an act of hostility
against this country under a commission from a State at war with
this country. So far I take to be clear. I therefore go a great way
with the defendant's counsel, who have argued that at this day the
form of the plea of an alien enemy, which states the party to be alien
enemy born, is not absolutely necessary to be adhered to in exclusion
of every other case of enmity. In the course of the argument we have
had many reasons and authorities adduced to shew, that if a man is
really to be considered an alien enemy, though not a native of the
country at war, he is so to be considered as to all the consequences
which apply to an alien enemy by birth. But here the plaintiff be-
comes an enemy in consequence of having participated in one single
act of hostility. Now, suppose it had been the pleasure of this State
to show him favour. Suppose this had been said, 'You are a neu-
tral, and perhaps have been drawn into the act in which you were
engaged; you are at liberty to return to your own country, or you
may remain here, as you are the subject of a prince in amity with
us. It has been admitted in argument that as soon as he should
become sui juris, the character of enemy would be purged. If, then,
the Crown had not thought fit to hold the plaintiff prisoner at war,
he could not have been considered as sustaining the character of
enemy, but would have been treated as the subject of a State in amity
with this country. The difficulty of the case, if there be difficulty,
arises from the plaintiff having been detained as prisoner at war; it
has been contended that if, at the moment of capture, he was an alien
enemy, that character must continue till he ceases to be a prisoner at
war. That part of the argument I never was satisfied with; I cannot
deny that he was captured as alien enemy; at that moment he was so;
but how came he to be so? Not in consequence of any permanent
character of enemy, but because he had joined in one act of hostility,
for which act he is not, according to the rigour of ancient war, put to
the sword, or delivered into the hands of the individual who took him
prisoner, to be kept prisoner by him till he should receive the ransom;
but he remains in the hands of the King till he is ransomed by an
exchange for the benefit of the State, or set at liberty by the King's
command. But how does this tend to fix on him the permanent char-
acter of an alien enemy? That character arises from the party being
under the allegiance of the State at war with us; the allegiance being
permanent, the character is permanent, and on that ground he is an
alien enemy, whether in or out of prison. But a neutral, whether in
or out of prison, cannot, for that reason, be an alien enemy; he can
be an alien enemy only with respect to what he is doing uncler a local
66
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
or temporary allegiance to a power at war with us. When the
allegiance determines, the character determines. He can have no
fixed character of alien enemy who owes no fixed allegiance to our
enemy, and has ceased to be in hostility against us, it being only in
respect of his being in a state of actual hostility that he was even for
a time an enemy at all. As a prisoner of war how does he differ from
any other individual who is in custody for an offence which he has
committed, and for which he is answerable? Captain Vaughan (5
State Trials, p. 17, No. 162) was not an alien enemy, but being a
natural-born subject of this realm, he became a traitor; for that he
was put in prison, for that he answered, and with his life. But it
was for that act of hostility merely. With regard to his character
of a subject, he remained, till the moment of his execution, as if that
act had never been committed. There is very little light to be pro-
cured from our books to assist us in our inquiry, how far a neutral
joining in an act of hostility is to be considered as having acquired
the character of alien enemy. The subject was indirectly discussed
in the case of Captain Vaughan, to which I have alluded. He was
charged in the indictment (see 6 State Trials, Appendix) with adher-
ing to the King's enemies by cruising cum subditis Gallicis; the fact
was, that many of his crew were not natural-born subjects of the
French King, but Hollanders. It was made a question whether the
Hollanders could be called subditi Gallici; and, though the point was
not aụthoritatively decided, because some of the crew were certainly
French, which was sufficient to support the indictment, yet it was
held by Holt, Ch. J., and agreed to by the rest of the Court, that the
Hollanders by accepting a commission from the French King became
subditi Gallici, and so remained during the continuance of their
service in a state of qualified subjection, arising out of the service and
determining with it. This, had it been the very point in judgment,
would have gone a great way towards deciding the present question.
The commission under which the plaintiff, being a German, acted
was put an end to by the capture of the frigate in which he was.
After that time he had no opportunity of continuing in the service
of the State of Holland; and his temporary character of alien enemy
ceased and determined with the authority under which he acted.
Captain Vaughan's case, as far as it goes, draws a line, and fairly
marks out when that character begins and when it shall end. I am
of opinion that it is determined by the very nature of the subject,
and, being so determined, why should we desire to enlarge the dis-
ability of the plaintiff or continue it until the war is concluded ?
Why, but in order to let in one of the harshest, one of the most im
politic, nay, immoral defences that ever was set up in a Court of
justice? This man, whether he was under a safe conduct or not, did
ENEMY CHARACTER OF PERSONS.
67
his duty faithfully, and was duly approved of by the officer of the
Caledonia. That ship was in such distress that she was, as it ap-
peared at the trial, under the necessity of taking in more hands at
Lisbon, and probably would have been lost without such assistance as
was afforded by the plaintiff. He now only asks for a moderate re-
ward, and is paid with a plea of alien enemy. This is certainly one
of the hardest cases I ever knew, and I think we ought to lean
against it.”
Trotter, pp. 112-115.
NATIONALITY OF CORPORATIONS.
The legal incapacities and disabilities imposed by a state of War,
both upon the alien individual enemy and the alien corporation of
the enemy, underwent a profound discussion in the case, The Society
for the Propagation of the Gospel, &c. v. Wheeler, in which Mr.
Justice Story delivered the judgment.1
a
66
LXXXIII. “In this respect” (the learned judge continued)
corporation, authorized by its charter to carry on a trade, and es-
tablished in the hostile country, such as the East India Company,
would undoubtedly be held, as to its property, within the same rule,
even admitting its members possessed a neutral domicile. In general
an aggregate corporation is not in law deemed to have any com-
morancy, although the corporators have?; yet there are exceptions
to this principle, and where a corporation is established in a foreign
country by a foreign Government, it is undoubtedly an alien corpora-
tion, be its members what they may; and if the country become hos-
tile, it may, for some purposes at least, be clothed with the same
character.
* If the reason of the rule of the disability of an alien enemy be, as
is sometimes supposed, that the party may not recover effects, which,
by being carried hence, may enrich his country, that reason applies as
well to the case of a corporation as of an individual in the hostile
country. If the reason be, as Lord Chief Justice Eyre, in Sparren-
burg v. Bannatine : asserts it to be, that a man professing him-
self hostile to our country, and in a state of War with it, cannot
be heard, if he sue for the benefit and protection of our laws, in
the Courts of our country, that reason is not less significant in the
case of a foreign corporation, than of a foreign individual, taking
advantage of the protection, resources, and benefits of the enemy's
country. In point of law, they stand upon the same footing.”
The learned judge afterwards proceeded as follows:
“Let us now advert to the second objection, which is, that the
members of the corporation are all alien enemies. In the writ, it
is expressly alleged, that all the members are aliens and subjects of
the King of the United Kingdom of Great Britain and Ireland. It
does not, however, hence necessarily follow that they are alien
12 Gallison's (Amer.) Rep. Judgment of Story, J., October Term, 1814, p. 127.
2 Inhabitants of Lincoln County v. Prince, 2 Massachusetts Amer. Rep. 544.
3 Bosanquet & Puller's Rep. p. 163.
68
NATIONALITY OF CORPORATIONS.
69
enemies. This averment in the writ was proper, if not indeed in-
dispensable, in order to sustain the jurisdiction of this Court; for
the corporation, as such, might perhaps have no authority whatsoever
to maintain an action here, under the limited jurisdiction confided
by the constitution of the United States to their own Courts. But
in the character of its members, as aliens, we have incontestable
authority to enforce the corporate rights; and it has been solemnly
settled by the Supreme Court, that, for this purpose, the Court will
go behind the corporate name, and see who are the parties really
interested. And if, for this purpose, the Court will ascertain who
the corporators are, it seems to follow, that the character of the
corporators may be averred, not only to sustain, but also to bar, an
action brought in the name of the corporation. It might therefore
have been pleaded in this case, even if the corporation had been
established in a neutral country, that all its members were alien
enemies; and upon such a plea, with proper averments, it would
have deserved great consideration, whether it was not, pendente bello,
an effectual bar. Where the corporation is established in the enemy's
country, the plea would à fortiori apply. But although the
corporation itself, and the members also, may be liable to the im-
putation of being alien enemies, yet that character does not neces-
sarily or unavailably attach to either. For aught that appears upon
the face of the record, every member of the corporation may be now
domiciled in the United States, under the safe conduct or license of
Government. In such a predicament, it is clear that, though aliens,
they would not be enemies, but might sue and be sued in our Courts.?
And in respect to the corporation itself, although established in
Great Britain, it may have the safe conduct or license of the Gov-
ernment of the United States for its property and the maintenance
of its corporate rights. It is clearly competent for the Government, ,
under the general rights of War, to grant letters of protection, and
thereby to suspend the hostile character of any person; and when,
he has such, protection, wherever he may be domiciled, he is to be
considered, quoad hoc, a neutral.
“Nor is there, in this respect, any difference between acorporation
and an individual. And it would be highly injurious to humanity,
as well as public policy, if institutions established in a foreign coun-
try for religious, literary, or charitable purposes, might not, during
War, obtain protection and patronage for their laudable exertions
to soften private misery and diffuse private virtue. To support the
motion in arrest of judgment, it is necessary for the Court to nega-
3
1 Bank of United States v. Deveaux, 5 Cranch's (Amer.) Rep. 61.
2 Bynk, Q. J. P. c. XXV. C. 8. Wells v. Williams, 1 Lord Raymond's Rep., 282.
Bynk, Q. J. P. c. vii. Usparicha v. Noble, 13 East's Rep. 332.
3
70
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
this case.
tive every presumption that could arise of a safe conduct or license,
either to the members or to the corporation itself. This cannot be
done in the present case consistently with the principles of law. The
suit was commenced in a time of peace, and every presumption, which
can, ought to be made, to support it. It is sufficient, however, that
by possibility the demandants, in their corporate capacity, and the
capacity of their members, may have a persona standi in judicio, to
entitle them to judgment.
There is another consideration also, which may properly weigh in
The suit was commenced during peace, and on the declara-
tion of War it was competent for the defendants to plead the hostile
alienage of the demandmants, it it existed, in bar to the further
prosecution of the suit, in the nature of a plea puis darrein contin-
nance, as it was pleaded in Le Bret 2. Papillon. They did not so
plead, and thereby have affirmed the ability of the demandants to
prosecute the suit to judgment. Upon this ground, where the dis-
ability of alien enemy occurred before judgment, and on a scire facias
on the judgment the disability was pleaded, the plea has been held
bad.2
“Upon the whole the motion in arrest of judgment must be over-
ruled.”
The same doctrine, namely, that the plea of alien enemy is one
which the Court will not favour, has been holden by the English
Courts of Common Law. Nevertheless, under the relaxation of
belligerent rights introduced by the Orders in Council of the War
in 1854–5, the English Prize Court held that the affidavit of the
claimant, being an enemy, must state matter showing that he has
a persona standi in judicio; such a persona will not be presumed.
but must be proved.
LXXXIV. The national character of corporations, as well as of
individuals, frequently undergoes discussion in Treaties of Peace
which award compensation for losses unjustly sustained before or
during War.
It has been held in England, by the judicial Committee of the
Privy Council, that a Corporation of British Subjects in a foreign
country, under the control of a foreign Government, must be con-
sidered as a Foreign Corporation, and is not therefore entitled to
claim compensation for the loss of its property, under a Treaty giving
the right of doing so to British subjects.
5
Phillimore, vol. 3, pp. 134, 137–141.
14 East's Rep. 502.
2 West v. Sutton, 2 Lord Raymond's Rep. 853.
3 Schepeler v. Durant, 2 Common Law & Equity Reports (Finlason), 729.
4 The Troija, 1 Spinks Eccles. c Adm. Rep. pp. 342-3.
5 Long v. Commissioners for Claims on France, 2 Knapp's Privy Council Rep. p. 51.
NATIONALITY OF CORPORATIONS.
71
A question has arisen repeatedly, however, as to whether the na-
tionality of the claim is to be determined by the place of the forma-
tion of the corporation, or by the nationality of the stockholders, or
of a majority of them. A cognate question receiving consideration
is as to whether the stockholders as such have a right of recovery
apart from the corporation in which they may have invested. The
Delagoa Bay case (Moore, 1865) has been often referred to as author-
ity to the effect that the nationality of such a claim is governed
by the nationality of the stockholder, and therefore that the English
and American interests, as stockholders or bondholders under a Por-
tuguese corporation, and a British corporation formed for the pur-
pose of financing it, were entitled to proceed internationally, by
virtue of being such stockholders, against the Portuguese govern-
ment. The particular facts necessary more fully to show the con-
dition of the stockholders and bondholders are contained in an
extract from the letter of Mr. Secretary Blaine, dated November 8,
1889 (Moore. 1866), as follows:
On December 14, 1883, Edward MacMurdo, a citizen of the United States
received from the Portuguese government a concession for the construction of
a railway from the Port of Lourenço Marques to the frontier between the
territory of Portugal and the Transvaal. The line of the railway so to, be
constructed and its extent were subsequently defined by plans approved by
the Portuguese government in October 20, 1884.
In accordance with the provisions of his concession, Colonel MacMurdo at
once proceeded to form a company for the construction of the railway, which
bore the title of Lourenço Marques and Transvaal Railway Co., and was
organized in Portugal. This company after several extensions of time was
unable to procure funds with which to complete the contract, and Colonel
MacMurdo then sought to obtain the necessary capital in England. His efforts
in that direction resulted in the formation in London of the Delagoa Bay and
East African Railway Co., and under the auspices of this organization the
funds required for the completion of the railway were secured. In these various
transactions Colonel MacMurdo, who remained all through, as the original
concessionaire, a responsible party for the completion of the road, took and
paid for a large amount of stock and bonds, and his proceedings for the forma-
tion of the British company had the approval of the Portuguese government,
the only reservation which it made in regard thereto being that the concession
should not be transferred to the British company. With this reservation, it
was understood on both sides, as appears by the correspondence, that the
British company might hold a part or even all the shares of the Portuguese
company.
The Portuguese government failing to live up to the terms of the concession,
and damaging both the English and American parties interested, an arbitration
was had. It does not appear from the terms of the protocol that the question
we refer to was expressly raised. The first article authorized the arbitral
tribunal to fix the amount of the compensation due to the English and American
claimants, and the third article provided that "it shall render its judgment
upon the substance of the cause, and shall pronounce, as it shall deem most
72
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
just, upon the amount of the indemnity due by Portugal to the claimants of the
other two countries."
The fourth article provided that “although it appertains to the arbitration
tribunal to designate the private persons or the moral persons who are en-
titled to the indemnity, the amount of that indemnity shall be paid by the
Portuguese government to the other two governments, in order that they may
make distribution of it to the claimants."
Although it is perfectly apparent from the foregoing, considered
more at large in connection with the correspondence, that the ques-
tion of the respective nationalities of corporations and stockholders
was never designed to be considered, and is ignored in the award
(Foreign Relations of 1900, 903), nevertheless, in the Salvador Com-
mercial case (Foreign Relations of 1902, 873), where the claimant
was an American corporation,--a stockholder to the extent of the
bare majority of shares in the Salvadorean Corporation,—the ma-
jority of the commission said:
We have not discussed the question of the right of the United States under
international law to make reclamation for these shareholders in El Triunfo
Co., a domestic corporation of Salvador, for the reason that the question of
such right is fully settled by the conclusions reached in the frequently cited
and well understood Delagoa Bay Railway arbitration.
The Franco-Chilean arbitral tribunal found it necessary to con-
sider the citizenship of a corporation and, on page 248 of its decision,
said:
In truth La Compagnie Consignataire argues wrongfully that in its capacity
of juridical person it has no nationality; that this contention is in contradiction
of the principles generally admitted, according to which the legislation of various
states distinguishes between indigenous moral persons and foreign moral per-
sons, whose capacity in matters of commerce or procedure is more often regu-
lated—especially in that which affects sociétés anonymes—by international
treaties; that it is necessary to consider as determining from the point of view
of nationality the law under the rule of which the moral person, corporation
société anonyme is formed, and on which its capacity depends; that is to say,
commonly the law in force at its principal office; that it follows from this that
the Compagnie Consignataire is a Peruvian society, since it is ruled by Peru-
vian law, and its principal office is at Lima; that it matters little from
this point of view that a certain number of its stockholders are foreigners to
Peru.
The same question received the consideration of Plumley, umpire
of the Netherlands-Venezuelan Commission, in the Baasch &
Römer case (Ven. Arb. of 1903, 906). It was sought to recover for
claimants' interest as stockholders in a Venezuelan corporation, the
property of which had been destroyed and the concern thereby bank-
rupted. The umpire said:
It is not necessary to consider this claim further than to accede to the posi-
tion taken by the learned agent of the respondent government. It is a Vene-
zuelan corporation, created and existing under and by virtue of Venezuelan
NATIONALITY OF CORPORATIONS.
73
law and has its domicile in Venezuela. This mixed commission has no juris-
diction over the claim. It is the corporation whose property was injured. It
may have a rightful claim before Venezuelan courts, but it has no standing
here. The shareholders being Dutch does not affect the question. The na--
tionality of the corporation is the sole matter to be considered. This claimu
is therefore dismissed without prejudice.
The general subject received consideration in the Kunhardt case,
where the American and Venezuelan commissioners each filed opin-
ions differently reasoned, but reaching the same result. Paúl, Vene-
zuelan commissioner, said (Ven. Arb. of 1903, 63; Morris's Report,
202):
The shareholders of an anonymous corporation are not co-owners of the
property of said corporation during its existence; they only have in their pos-
session a certificate which entitles them to participate in the profits and ta
become owners of proportional parts of the property and values of the cor-
poration when this one makes an adjudication as a consequence of its final
dissolution or liquidation. The Venezuelan Commercial Code in Article 133
expressly determines that an anonymous corporation constitutes a juridicali
person distinctly separated from its shareholders. The integrity of the
rights of the corporation remains in the corporation itself, and its exercise is
specially and legally intrusted, by the common law, by the provisions of the
commercial code, and by the social contract, to the manager and the board of
directors. Therefore the said rights cannot be exercised by any other person
than the directors of the corporation. . The case of the claim of the
Salvador Commercial Company and others citizens of the United States, stock-
holders in the corporation which was created under the laws of Salvador, un-
der the name of El Triunfo Company, Limited, and the other one of the Delagoa
Bay Railway Company, to which the attention of the commission has been
called by the honorable agent of the United States, have been carefully ex-
amined, and they do not present any likeness to the present claim.
Bainbridge, commissioner, held as follows:
The real interest of Kunhardt & Co. is an equitable right to their propor-
tionate share of the corporate property after the creditors of the corporation
have been paid. •. The value of the corporate shares and the extent of a
shareholder's interest in the corporate property are absolutely dependent upon
the relation which the assets of the corporation bear to its liabilities. The
absence of such a showing in this case renders impossible the determination
of Kunhardt & Co.'s interest in the concession or the amount of loss they
have sustained by its annulment. The claim must, therefore, be here dis-
allowed.
In the Henriquez case (Ven. Arb. of 1903, 910), Plumley, umpire
of the Netherlands-Venezuelan Commission, refused to entertain
jurisdiction of the claim of a Hollander stockholder in a partnership
which it was not disputed was by Venezuelan law a citizen of
Venezuela.
In the case of Robert Stirling, before the Anglo-Chilean Com-
mission (Reclamaciones Presentadas al Tribunal Anglo-Chileno,
Vol. I, 158), it was held that the act creatirg an anonymous society
110678-19 6
74
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
approved and recognized by the authority of the country where it
was created, should be examined carefully to determine if such
society be national or foreign; that the nationality of an anonymous
society is to be determined by the domicil of this juridical person, by
the place of residence of the society, and that the seat of the admin-
istration and direction fixes this domicil, and not the center of exploi-
tation; that it may be said that moral persons are possessed of the
nationality of the state or lawgiver granting them existence.
In the Cerruti case, President Cleveland (Foreign Relations of
1898, 245) made an award in favor of the partnership (a corpora-
tion by Colombian law) in which Cerruti was the principal party
interested. Pierantoni (Revue de Droit International, 1898, Vol.
XXX, 460), although an Italian, severely criticised the award for
this reason, saying:
A commercial society can not be considered as a foreigner for the sole reason
that one of the associates is a foreigner. A great number of documents prove,
outside of the text of the protocol, that the two governments, the Italian and
the Colombian, persisted in separating the society from the claimant Cerruti.
It is not then doubtful that the decision upon this point traveled completely
outside the limits of arbitral action. The losses and damages of Cerruti are
not the losses and damages of the society of which Cerruti made part.
Notwithstanding the language quoted from commissions, it may be
considered that the main question has not received its solution, and
that it may be finally found that equitable considerations will justify
appeal by stockholders to their governments when wronged, although
they are clothed by fiction of municipal law with a new personality
through the existence of the corporation in which they are interested.
A most exhaustive discussion of the subject of the nationality of
corporations, including the question as to how far it is affected by
that of the stockholders, is to be found in the Revue de Droit Inter-
national, second series, 1902, vol. IV, 381.
Ralston, p. 97-101.
Foreign investments in time of war.
Whatever dangers war may have in store for the foreign investor,
there is now little fear of his property being confiscated by the enemy
state. Within recent years the old right of confiscation has only
once been exercised, namely, by the Confederate States in 1861. Not
only was the act condemned in Europe and in America, but sales
under it have been held void. If the right still exist, “it may well
be considered as a naked and impolitic right, condemned by the en-
lightened conscience and judgment of modern times.' Sequestration
and confiscation have been expressly forbidden by treaties, notably
the Treaty of 1800 between the United States and France, and the
Treaty of 1795 between England and the United States, which last
specially mentions the case of shares.
NATIONALITY OF CORPORATIONS.
75
“ Neither the debts due from individuals of the one nation to indi-
viduals of the other, nor shares, nor monies which they may have in
the public funds, or in the private or public banks, shall ever in any
event of war or national differences be sequestrated or confiscated"
(Art. X).
In the opinion of Kent and Wheaton, this Article was not abrogated
by the war of 1812, so that it is probably binding to-day. Other
treaties exist containing similar clauses; but as they are for the most
part made with South American States, it may be fairly argued that
it is not now thought necessary for well regulated states to make any
express provision to guard against the exercise of a right which they
tactily admit to be obsolete.
Clearly, if the state do not confiscate the debenture loans and shares
it would be grossly unjust to allow private individuals to do so. The
law has never permitted this, and indeed it has been laid down in the
United States that “war does not confiscate debts or property for
the benefit of debtors or agents, but only suspends the right of
action."
As therefore confiscation is highly improbable the contracts of
the debenture-holder and of the shareholder are free to be considered
each on its own merits.
Law Quarterly Review, vol. XX, pp. 167, 168; Caldwell v Harding
1 Lowell, 326.
>>
1
The legal position of the debenture-holder.
The two most important questions for a debenture-holder are:-
(1) Will he be in danger of losing his principal owing to the Statute of
Limitations running during hostilities?
(2) Will he be able on the restoration of peace to sue for arrears of
interest accrued on the debenture during hostilities?
With regard to the first question of the Supreme Court of the
United States in Hanger v. Abbott, after expressly considering the
effect of the English statute 21 Jac. I. c. 16, and all the cases bearing
upon the subject, held that
* Peace restores the right and the remedy, and as that can not be if the
limitation continues to run during the period the creditor is rendered in-
capable to sue, it necessarily follows that the operation of the statute is also
suspended during the same period.'
This principle has been followed in other American cases, but ac-
cording to the English textbooks it would appear that a different
rule prevails in this country. The only English case in which a
judicial, opinion has been expressed on the point is that of De Wahl
v. Braune, where a married woman during the Crimean War sued
16 Wallace, 532.
2 25 L. J. N. S. Ex. 343; 1 H. & N. 178.
76
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ܝ ܝ
on a contract whilst her husband was an enemy domiciled in Russia.
It was argued that the plantiff's husband was dead in the eye of the
law, and that therefore she was in the position of a feme sole, but
such an argument did not prevail. No defence on the Statute of
Limitations was raised or required, but Bramwell B., after holding
that the husband must be joined in all actions after coverture, went
on to say:
'It is sought to take this case out of that rule by saying that the husband
cannot sue, but that is no answer. It may be that the effect would ultimately
be to bar the action by reason of the Statute of Limitations, but the incon-
venient operation of that statute is no answer and does not take the case out
of the general rule.'
This is hardly a sufficiently satisfactory authority to support so
important a rule. In the American cases the point was raised,
argued, and decided, whilst in the English case the plaintiff lost the
action on other grounds, so that the opinion of Baron Bramwell is
merely an obiter dictum. Therefore in spite of the textbooks it is
conceived that should the question really come before an English
tribunal, it would be held that the Statute of Limitations does not
run during hostilities.
With regard to the second question raised, unfortunately there are
no opinions or decisions directly in point; but a few American cases
require careful attention, as they deal with the legality of claiming
after war interest accrued on debts during it.
On the termination of the War of American Independence by the
4th Article of the Treaty of 1783, it was agreed that creditors on
either side should meet with no lawful impediment to the recovery
of the full value of all bona fide debts contracted before the war.
Creditors being thus protected from confiscation sued not only for
the principal value of their debts but also for the interest accrued
in the meantime. Thus in Hoare v. Allen 1 interest was claimed by
an Englishman on a mortgage for £16,000 which appears to have
been made on December 4, 1774, at any rate no suit could have been
brought upon it till December 4, 1775. War broke out on September
10, 1775 and lasted till March 10, 1783. The Supreme Court of
Pennsylvania held that interest is paid for the use or forbearance
of money, and that in this case there could be no forbearance, be-
cause the plaintiff could not enforce the payment of the principal.
Where a person is prevented by law from paying the principal he
should not be compelled to pay interest during the prohibition.
The Court were unanimously of opinion that the plantiff was not en-
titled to interest from September 10, 1775, to March 10, 1783, but
during the rest of the time he must be allowed interest in full.
1 2 Dallas, 102,
NATIONALITY OF CORPORATIONS.
77
In Foxcraft v. Nagle 1 a similar judgment was given in a case in
which the facts are unfortunately very imperfectly reported
In Conn and Others v. Penn ? the same question was raised in a
complicated Chancery case. Certain persons having an equitable
title to land in a certain manor claimed to have the legal estate trans-
ferred to them. In the taking of accounts a claim was made for an
abatement of interest during the American war of Independence and
the war with England in 1812. Washington J. said:
'A prohibition of all intercourse with an enemy during the war and the
legal consequences resulting therefrom, as it respects debtors on either side,
furnish a sound if not in all instances a just reason for the abatement of in-
terest until the return of peace. As a general rule, it may safely be laid down,
that wherever the law prohibits the payment of the principal,, interest during
the existence of the prohibition is not demandable. But the rule can never
apply in cases where the creditor, although a subject of the enemy, remains
in the country of the debtor or has a known agent there authorized to receive
the debt, because the payment to such creditor or his agent could in no respect
be construed into a violation of the duties imposed by a state of war upon the
debtor. The payment in such a case is not made to an enemy, and it is no ob-
jection that the agent may possibly remit the money to his principal; if he do
so the offence is imputable to him, and not to the person paying him the
money.'
In Denniston v. Imbrie 3 the same judge practically repeated his
judgment in the preceding case.
In Ward v. Smith 4 the Court followed the judgment in Conn v.
Penn. But the case is noteworthy as it emphasizes the fact that
interest will run if the enemy creditor have an agent in the country
authorized to receive payment on his behalf.
Brown v. Hiatts 5 is the last case in which the question arose. On.
May 29, 1860, Brown lent Hiatt and his wife $2,000 at interest at the
rate of 20% per annum, and took a bond payable in twelve months
for the amount, with interest for the period included, making a bond
for $2,400, the whole drawing the stipulated interest after maturity.
As security for the payment of this bond with interest and simul-
taneously with its execution certain property was mortgaged to the
plaintiff. War broke out on April 27, 1861, before the bond matured,
and terminated on April 2, 1866. During this period the parties
were domiciled enemies. Brown brought his action to foreclose the
mortgage, claiming the principal of $2,400 together with interest
both during the war and afterwards. After quoting Hoare v. Allen
and Conn v. Penn, supra, the Court gave judgment in favour of
Brown for the amount due on the bond, such amount to be made up
1 2 Dallas, 132, 150.
2 Peters, C. . C., *496.
83 Washington, C. C., 396.
47 Wallice, 447.
5 15 Wallace, 177.
78
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
by adding to the principal (i. e. $2,400) the interest due to the date
of judgment at the rate stipulated, deducting the period intervening
between April 27, 1861, and April 2, 1866.
Finally, reefrence may be made to the case of Kershaw v. Kelsey,
where it was held that when a landlord prior to his departure into
enemy territory appoints an agent to receive the rent of his property
on his behalf, then the tenant must pay his rent to the agent duly
authorized to receive it.
So far as they go, these judgments are perfectly reasonable, but
there is one point on which greater stress should have been laid.
More attention ought to have been called to the fact that in Hoare
v. Allen the mortgage could not have been sued upon and presumably
could not have been paid off for one year, and that therefore interest
ought to be allowed for that year, whatever happens during it. A
mortgagor can not, as of right, redeem before the time appointed in
the mortgage deed; and if the mortgagee should as a matter of
indulgence consent, at the request of the mortgagor, to accept pay-
ment before the legal period of redemption, he is entitled to the full
amount of interest up to that time. In Hoare v. Allen a judgment
was given which apparently deprived the mortgagee of interest from
the outbreak of war to the date of maturity, that is to say, from
September 10, to December 4, but it is difficult to see why he should
be deprived of this. If war had never been waged he still could not
have sued on the mortgage till December 4. In Brown v. Hiatts
apparently interest was allowed for the first year, that is to say till
maturity, because judgment was given for the 'principal'sued upon,
namely $2,400, plus certain interest, and this 'principal' included
$400, one year's interest on the real loan.
The point which it is desired to make is, that when interest is
stipulated on an instrument till' maturity, that interest should be
payable in any event. The interest up to maturity is the considera-
tion for the immediate use of the money, not for any forbearance to
sue, as no suit can be brought till then, except perhaps in certain
special cases provided for in the deed or instrument. If the loan
matures during the war and there is no agent to whom payment can
be made, it is submitted that the correct view to take is that interest
should run up to that date and then cease. Such a view is not in
any way repugnant to the principles laid down in the dicta of the
judges, though it is not sufficiently emphasized in Brown v. Hiatts,
and is to a slight extent at varianca' with the judgment in Hoare v.
Allen.
Should this doctrine meet with approval, then the effect on
debentures is most important. Sometimes debentures are redeem-
1 100 Mass. 561.
NATIONALITY OF CORPORATIONS.
79
able on demand, as when they are given to a bank to secure the
company's overdraft, but usually they are redeemable at some fixed
date, such as five, ten, or twenty years from the date of issue, or
upon the happening of certain events specified in the debenture or
in the trust deed. It is submitted that in spite of the outbreak of
war, interest will run up to the time fixed for payment. A difficulty
may arise owing to a clause which is commonly inserted in deben-
tures, whereby an option is given to the company to redeem at a
slight premium at any time upon giving a certain number of months?
notice. In such a case a company by giving notice just before the
war might prevent interest running on debentures held by enemy
persons. What the result of such action would be it is difficult to
say, but it is possible that the Courts would refuse to recognize the
validity of such notices, if they were clearly shown to be given only
for the purpose of depriving the enemy debenture-holders of their
interest and not in the ordinary course of the company's business.
As regards perpetual debenture stock it is conceived that the
interest thereon will continue to run throughout the war.
Each case will naturally depend on its own special circumstances;
but speaking generally, on the restoration of peace a suit for arrears
of interest within the limits here laid down should be successful,
especially when it is remembered that the old cases were decided at
a time when debts themselves were freely confiscated, that milder
practices now obtain, and that in construing old precedents judges
will probably take into account the modern tendency towards less
stringent rules.
The practice which has been followed with regard to debenture-
holders in the South African mining companies may not create any.
binding precedent, but there can be little doubt that in every case
interest was regularly paid.
Law Quarterly Review, vol. XX, pp. 168–172.
I
6
South African mining companies.
It is difficult to decide whether some of the companies were
enemy' or not; but Janson v. Driefontein Consolidated Mines Lim-
ited 1 seems to show that a company incorporated under the laws of
the Transvaal and carrying on business there was an enemy com-
pany, though nearly all the shareholders were British. The Stock
Exchange Year Books for 1900, 1901, and 1902 show that this com-
pany negotiated a loan for £100,000 in September, 1898, payable in
six equal half-yearly instalments. It may fairly be assumed that
many of those who joined in this loan were domiciled in England,
yet this made no difference whatsoever, for the last instalment was
punctually paid in 1901, of course with interest up to maturity.
1 A. C. 489, 505.
80
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The case of the Pretoria-Pietersburg Railway Limited is instruc-
tive. This company, having been formed to work a railway conces-
sion in the Transvaal, was incorporated in London with a capital of
£500,000, of which £300,000 was subscribed by the Transvaal Govern-
ment, who guaranteed the principal and yearly interest of 4 per cent
on the debentures issued and a dividend of 4 per cent on the share
capital. The debentures were held to some extent in Amsterdam, but
chiefly in London. The Transvaal Government defaulted on the
guarantee on January 1, 1900, but the debenture coupons were then
purchased at par by certain brokers acting on behalf of other par-
ties. Since the outbreak of war the British Government, under an
order of Court, took possession of the £300,000 worth of shares
originally subscribed by the Transvaal Government. In a communi-
cation dated February 18, 1902, the British Government recognized
the validity of the company's concession, and admitted liability to
pay all arrears of interest due on the debentures and shares. Thus
coupons due July, 1900, and January and July, 1901 and 1902, were
paid by the Crown agents for the Colonies on July 1, 1902.
The character of this company is difficult to determine. It was
incorporated here, but registered both here and in the Transvaal,
where it carried on business under a local board consisting entirely
of burghers. If the company were a Transvaal and therefore enemy
company, the question of the payment of interest to the English de-
benture-holders arises. In this connexion it is noticeable that the
British Government, as successors to the rights and liabilities of the
Transvaal Government, felt bound to pay interest not only from the
date of annexation (September 1, 1900) but from the date when the
interest was last paid, viz. January, 1900, thereby showing that they
considered this to be one of the liabilities of the Transvaal Govern-
ment to which they had succeeded. If, on the other hand, the Com-
pany were an English company, then the Transvaal Government was
in the position of an enemy shareholder on the outbreak of war. The
position of enemy shareholders is dealt with later on, but it would
be well to notice here, that by the Order of Court it was held that
the British Government succeeded to these shares as an asset belong-
ing to the late South African Republic, and therefore it is clear that
the Court were of opinion that the enemy shareholder (the Trans-
vaal Government) remained a shareholder even after the outbreak of
war.
A study of the Stock Exchange Year Books shows that the war
made no difference whatever to the legal position of either share-
holders or debenture-holders. As most of those interested in the
Transvaal companies were persons with English domicil, and as
England ultimately conquered the country, the value of these in-
NATIONALITY OF CORPORATIONS.
81
stances as precedents is largely discounted. But for all that the
cases are worth careful study, if for no other reason than this—that
they emphasize most forcibly the extreme difficulty and complexity
of the legal problems which, in the event of war between two
first-class powers, must press for solution.
Law Quarterly Review, vol.. XX, pp. 172-174..
The legal position of the shareholder.
In considering the effect of war upon commercial relations most of
the jurists merely say that executed contracts are suspended so far
as the right of action is concerned, executory contracts abrogated,
and partnerships between enemies dissolved.
Unless certain words of Calvo,+ where he says that the rule forbid-
ding contracts with the enemy is above all applicable aux asso-
ciations commerciales formées entre les sujets des deux nations avant
ou après la déclaration de guerre,' are taken to include companies as
well as partnerships, there are only two opinions which have ap-
peared in print as to the effect of war upon members of a company.
The author of the sixth edition of Lindley on Companies a repeat-
ing the words of Lord Lindley in a former edition, says:
• The effect of a person who is a member of a company becoming an alien
"enemy by a declaration of war has never been decided, but ex parte Bouss-
maker (13 Vesey, 71) tends to show that such a person would not ipso facto
cease to be a member, but rather that his rights and liabilities would be sus-
pended during the war and might be enforced upon the restoration of peace.'
The case cited merely decides that after a war an alien can sue
for a dividend in a bankruptcy, the liability having arisen out of a
contract made before the war. With great respect to Lord Lindley's
opinion, such a case can only very remotely suggest that a share-
holder in an enemy company will continue to be a member.
In a little book entitled 'International Law in South Africa' the
learned author, Dr. T. Baty, comes to a different conclusion.3 Basing
his argument on the analogy between companies and partnerships, he
says: 'It would be unjust to hold a person to be still a member of a
company when that person is debarred, through being an alien
enemy, from taking an active share in its management. The com-
pany being incorporated will continue to exist, but the enemy member
will, so to speak, drop out of the company, and be entitled to re-
ceive the value of his shares as on the day war breaks out. This
claim probably cannot be enforced till after the restoration of
peace, but in the meantime he will not be liable for any calls
made nor entitled to any profits earned. As the constitution and
14th ed. sect. 1930.
2 i, p. 63.
8 ch. VI.
82
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
status of the company is entirely a matter to be regulated by
the laws of the state which gives to it legal existence, and as
the country of incorporation is the only one where the company
can be wound up, the shareholders who thus drop out will be
those who are alien to the country of incorporation, even though
they may form a majority in number, whilst the shareholders who
are domiciled in that country will continue to form the company.
'Domiciled British members of a company incorporated under the laws of the
South African Republic must probably be held in England to have ceased to
be shareholders, to be free from future liability, and to have an inchoate claim
for their share of assets as at the date of hostilities. On the other hand, if
the company is incorporated under British law, our Courts ought, on these
principles, to hold that citizens of the South African Republic have ceased to
be members—that they cannot be affected by liabilities incurred, nor benefited
by profits made, since the war; and that they will have subject to the Crown's:
right of confiscation—a claim to a share of the surplus assets of the company,
calculated as at the outbreak of the war.'
Before examining the reasons given for the rule by which partner-
ships are dissolved to see how far they are applicable to companies,
there is one special case which should be mentioned. If a person,
having applied for shares in an alien company, has received an allot-
ment letter, but has not yet paid the further instalments to be sub-
scribed before obtaining a share certificate, the outbreak of war would
probably rescind the contract, and the intending shareholder would
be entitled to a return of the amount paid by him to the company.
This would be in accordance with the principle laid down in The
New York Life Insurance Company v. Statham, where it was held
that the representatives of the assured were not entitled to the full
value of the insurance policy, because owing to the prohibition of
intercourse during the American Civil War the premiums had not
been paid down to the date of death, but that they were entitled to
the true value of the policy as on the day war broke out.
Most of the writers on international law simply say that the ruly
of non-intercourse necessitates the dissolution of existing partner-
ships, but Hall gives another reason as well, namely, that it is impos-
sible for partners' to take up their joint business on the conclusion of
war at precisely the point where it was abandoned at its commence-
ment.'? The law governing partnerships is fully discussed in the
judgment of Chancellor Kent in Griswold v. Waddington. Joshua
Waddington, an American in New York, and Henry Waddington,
an English subject in London, were partners before the outbreak of
the war of 1812. Griswold sought to make Henry Waddington, the
London partner, liable for a debt contracted by Joshua Waddington
1 93 U. S. 24.
2 5th ed., p. 390.
316 Johnson, 438, 489.
NATIONALITY OF CORPORATIONS.
83
during the war. After reviewing all the authorities, Kent decided
that the partnership was dissolved.
'It is one of the fundamental principles of every commercial partnership, that
each partner has the power to buy and sell and pay and receive, and to contract
and bind the firm. But then, again, as a necessary check to this power, each
partner can interfere and stop any contract about to be made by any one of the
rest. ... But if the partnership continues in war between hostile associates,
this salutary power is withdrawn, and each partner is left defenceless. If the
law continues the connexion, after it has destroyed the check, the law is then
cruel and unjust.'
In another passage he gives an additional reason:
The commercial business of each country, and of all its people, is an object
of attack and of destruction to the other. One party may be engaged in
privateering, or in supplying the fleets and armies of his country with pro-
visions, or with munitions of war; and can the law recognize the other partner
as having a joint interest in the profits of such a business? It would be impos-
sible for the one partner to be concerned in any commercial business which was
not auxiliary to the resources and efforts of his country in a maritime war.
And shall the other partner be lawfully drawing a revenue from such employ-
ment of capital and such personal services directed against his own country?
We cannot contemplate such a confusion of obligation between the law of part-
nership and the law of war, or such a conflict between his interest as a partner
and his duty as a patriot without a mixture of astonishment and dread.'
Thus there are three reasons given for the rule:
(1) Owing to the prohibition of all intercourse between the
two countries at war, the power of mutual control which
enables one partner to check another's dealings is gone.
(2) After the war it is impossible for the partners to pick up
the threads of the business at the point where they were
abandoned.
(3) A person should not reap benefit out of his partner's trade
in the enemy country; therefore the partnership must
be either dissolved or suspended till the restoration of
peace, and as the latter is impossible in the case of a part-
nership it is necessarily dissolved.
How do these reasons apply to the case of companies?
As companies owe their existence to the statutes under which they
are created, and as their legal position differs somewhat in different
countries, a case arising in the Courts will be largely determined by
arguments drawn from the local Acts, though of course due regard
will be had to the well-established principle of international law,
that all commercial intercourse between enemies is forbidden.
Within the scope of this article the problem can only be dealt with
on general principles, as it is impossible to go minutely into the
differences of the company laws in England, America, and the
Continent.
84
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A shareholder in an English company is a party to a contract with
the company, the terms of which appear in the Articles of Associa-
tion. The Articles will therefore play a most important part in the
case, but as a rule they will contain no special regulation requiring
the rescission of the contract upon the outbreak of war, so that the
chief question to be decided is whether a shareholder is in a posi-
tion sufficiently analogous to that of a partner.
Now, the great differences between companies and partnerships in
English law are as follows:-
(a) A shareholder's liability is limited, whilst a partner's is
unlimited.
(6) A company is a legal person quite distinct from the mem-
bers, and continues to exist whatever may happen to
any particular shareholder, whereas if a partner leaves
the firm the partnership is altogether dissolved.
(c) A shareholder's control is in most cases very small, as he
can only exercise his vote at one or two meetings each
year. A partner has a much greater control of the
business, for he can bind the firm. However, it must
be admitted that many shareholders exercise more
power than does a sleeping partner; and in the case of
so-called 'private companies a large shareholder, who
in that event is generally a director as well, may have a
very powerful voice in the conduct of the concern.
(d) A shareholder can generally easily sell his shares if he
begins to get anxious about the company, though this
is probably not the case in private companies. A part-
ner sometimes has the greatest difficulty in selling his
share.
(e) There are often many shareholders in a company, whilst
the number of partners in a firm is in most cases very
few. However, in private companies there are seldom
more than seven shareholders, and three or four of
these are frequently only nominal.
With regard to the first reason given for the rule whereby partner-
ships are dissolved, it is submitted that except in the case of private
companies it is, practically speaking, inapplicable. A shareholder's
control is very slight. As a matter of fact, very few alien share-
holders exercise their right to attend the annual meetings. Still, of
course, there is a distinction between failure to exercise one's rights
through indifference, and inability to exercise them on account
of the prohibition of intercourse. But for all that, when it is
remembered that the shareholder's risk is limited, that even in
times of peace his control is usually very small, and in fact seldom
exercised, that he will in many cases be able to sell his shares either
NATIONALITY OF CORPORATIONS.
85
before the war or during it upon a neutral Bourse, and that the num-
bers of shareholders in foreign companies must be almost innumer-
able, it is submitted that the inconvenience resulting from holding
that a member ceases to be such as from the outbreak of hostilities
is far greater than the largely hypothetical injustice caused by con-
tinuing his liability in a company over which he cannot exercise the
small share of control allowed him.
Both the second and the third reasons for dissolving parnerships
are inoperative as regards companies, for owing to incorporation the
rights and liabilities of a shareholder, unlike those of a partner, can
be suspended until the return of peace. A shareholder does not need
to pick up the threads of the business at the termination of war,
because in the meantime the business will have been carried on by the
directors and servants of the company. So, too, if it be illegal
to share in the profits of an enemy company, it is not necessary to
rescind the shareholders' contract, for it can be suspended by with-
holding from him all profits earned during the war.
The case of English private companies presents difficulties. Here
the analogy to a partnership is very strong, but the legal differences
are no less remarkable. The Articles of Association will be of the
greatest importance, because they are usually drawn with the object
of keeping the control entirely in the hands of the directors, who are
therefore endowed with very extensive powers. As few rights as
possible are given to outside shareholders. Thus preferred share-
holders are often debarred from having any voice in the management
of the company, being only allowed to vote upon such questions as
whether the capital shall be reduced or the company wound up. The
prohibition of intercourse owing to war cannot seriously prejudice
such a shareholder. The ordinary shares are usually all held by the
directors themselves; but in spite of the stringent conditions as to
transfer, it is impossible to prevent some of them getting into the
hands of the public. Even though an ordinary shareholder might
hold a large number of shares, yet not being a director and able to
vote at a directors' meeting his control would be very slight. In the
event of his becoming tainted with enemy domicil it is conceived that
he would still continue to be a member of the company. If a case
of real hardship could be properly made out the Court might grant
relief, but as a rule the Articles of private companies are so drawn
that none but directors have any real power at all. Both the pre-
ferred and the ordinary shareholders bear a closer resemblance to the
commanditaires' in French private companies than to partners in
partnerships.
Now suppose an English private company decided to open a
branch house in America and one of the directors went over there
to manage it. Here the analogy to a partnership is too striking to be
6
86
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
disregarded. Looking through form to substance, it is clear that thu
American director is in effect a partner with limited liability. On
the outbreak of war he should therefore drop out of the company on
the lines sugegsted by Dr. Baty.
But the question regarding a director's position is a difficult one to
solve, for strictly speaking he is a party to two contracts, first that
of shareholder, secondly that of director. Whatever happens to his
contract quâ shareholder it would seem that his contract quâ director
must be terminated by the outbreak of the war. The dicta of Chan-
cellor Kent in Griswold v. Waddington, to the effect that it would
be preposterous to hold one partner liable for the other's acts when
all power of control is gone, apply with almost equal force to the
case of a company and a director or a principal and an agent. Gris-
wold v. Waddington goes so far as to imply that the outbreak of war
will put an end to all contracts of agency between enemies; but the
cases of Conn v. Penn., Ward v. Smith, and Kershaw v. kʼelsey, cited
above, show that it is legally possible for a principal to have an
agent in the enemy country to receive payment of a debt or payment
of rent. Thus a distinction is drawn between agents who have large
powers to bind their principals and involve them in serious liabilities,
and debt or rent collectors. In the former case the contract would
probably be dissolved, but a serious difficulty would arise if a com-
pany or other principal, just before the outbreak of hostilities, sent
out an authority to the director or agent to act generally on their or
his behalf during the war. On the strength of Griswold v. Wadding-
ton the enemy director would cease to be such, but it might be argued
that he is now a properly constituted agent with such powers as are
given him in the document creating the agency. If this argument
prevailed the director would no longer be one in name, but would
be one for practical purposes. The position is somewhat analogous
to that which would have been created if in Griswold v. Waddington
the London partner had given an authority to the American to act
generally on his behalf. Would Griswold have failed on the question
of partnership but succeeded on the document creating the agency?
The question of agency is beyond the scope of this article, but it is
submitted, that if owing to the Articles or any other cause the alien
director cease to be a director, then in private companies he should at
the same time cease to be a shareholder as well, for it cannot be
denied that directors in private companies are in substance partners.
They are very different to directors in public companies. These last
are frequently merely men of good commercial standing, with no real
knowledge of the working details of the company; one of their num-
ber, the managing director, with a staff of officials, is really the pre-
siding genius of the concern. But in private companies the directors
are managers as well as directors, and as a rule most of their capital
NATIONALITY OF CORPORATIONS.
87
is embarked in the business. In fact the analogy to a partnership
is complete, except that the liability is limited and the old partner-
ship is a legal person.
The results of the previous investigation are as follows:-
(a) Directors with enemy domicil must cease to be directors both
in public and private companies. Clauses in the Articles such as
those requiring attendance at director's meetings will help to pro-
duce this result.
(6) Directors in private companies will not only cease to be di-
rectors, but they will cease to be shareholders as well. The company
may have to be wound up, but at any rate the director with enemy
domicil will be entitled to claim the value of his shares as on the day
when war breaks out.
(c) Shareholders, both preferred and ordinary, in both public and
private companies will as a rule continue to hold their shares in the
enemy company.
(d) If a case of great hardship were properly made out the
Court would probably grant relief in that particular instance.
The laws governing American corporations are very similar to
our own, though each state apparently has its own special laws dif-
fering slightly from all the others. Some states allow commandite
partnerships, but, broadly speaking, the general characteristics of
American corporations are similar to those of English companies, so
that the previous reasoning will apply; and thus it is submitted that
except in the case of directors in small private corporations, there
is not sufficient analogy to a partnership to justify the great incon-
venience which would be caused by holding that all the enemy stock-
holders ceased to be such, but had an inchoate claim to the value of
their stock as on the day when war breaks out.
In forming private companies on the Continent, as the preserva-
tion of the trade name is essential, the creation of a société anonyme
is out of the question. A commandite company is therefore formed
by allowing persons whose names do not appear to become share-
holders with limited liability, these shares being transferable like
shares in a société anonyme. In such a case the active partners are
usually subject to the supervision of a committee of shareholders,
who by examining the books and accounts and reporting thereon pro-
tect the interests of the shareholders. In the event of one of the
shareholders in a commandite company being tainted with enemy
domicil, he should continue to retain his shares. A case of hardship
might arise under exceptional circumstances, but in most cases it is
conceived that the outbreak of war is not a sufficient reason for ter-
minating the contract, especially as the committee of supervision
will probably continue to look after his interests in common with
88
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
those of the other shareholders. In the event of one of the real or
active partners whose liability is unlimited becoming a domiciled
enemy the partnership will terminate on the authority of Griswold v.
Waddington.
The equivalent of the English limited company on the Continent
is the société anonyme. Generally speaking, Continental laws,
whilst providing more guarantees to the investor than English laws,
hamper companies by paternal restrictions. For example, the audi-
tors have much larger powers than in England, being in some cases
authorized by the Articles to attend directors' meetings. In some
countries companies require special state authorization. Again, they
are generally formed for a certain definite period. But the differ-
ences are not such as can materially affect the argument which has
been given with special reference to English companies, for there is
the same system of shareholders voting at general meetings, and
thereby expressing their assent or dissent with the policy of the di-
rectors. A similar argument will therefore apply with a similar
result.
The question now arises-Will a shareholder on the restoration of
peace be entitled to sue for profits earned and liable for losses in-
curred during the war, or, in other words, will his right to the divi-
dends as well as his right to sue for the dividends be suspended dur-
ing hostilities?
Chancellor Kent's judgment in Griswold v. Waddington is to the
effect that it is not only illegal but almost treasonable to share in
the profits of a trade carried on in the enemy country. At first sight
this may seem to be so, but as a matter of fact already the law per-
mits persons to share in the profits of business or property in the
enemy country. The cases of Conn v. Penn, Ward v. Smith, and Ker-
shaw v. Kelsey, supra, show that it would be perfectly legal to pay
interest on a loan or rent for the use of land to an agent, who on the
return of peace would remit the payments to his principal. The re-
sult is the same as that obtained by a successful suit by the lender or
the landlord on the termination of the war. Thus the law does not
consider it illegal to receive at the end of the war rent or interest
accrued during it. Again, there cannot be the least doubt that a
debenture-holder will retain his security even after the outbreak of
hostilities. If the company make large profits the value of the de-
benture will appreciate, and thus the debenture-holder's capital will
be augmented owing to the profits made during the war. In fact
he gets a small share in such profits. Another example of the fact
that the law allows persons to share in profits on their foreign in-
vestments is furnished by the case of loans to alien governments.
Few things could help an alien country more than loans to it, but for
NATIONALITY OF CORPORATIONS.
89
all that neither capital nor interest is confiscated or sequestrated. In
all these cases the law allows persons to receive profits on enemy in--
vestments. Will it then deny a shareholder his profits?
It has already been submitted that a shareholder must continue
to hold his shares. It is now submited that he inust remain a share-
holder in fact and not only in name, and that he will be entitled
to profits made and liable for losses incurred during the war. Take
an example: Suppose a shareholder held 100 £10 shares (£5 paid up)
in an alien company valued at £5 before war broke out. If the
company were successful during the war the shares might stand at
£6. Unless the shareholder drop out of the company altogether, he
will at any rate be entitled on the return of peace to resume his full
rights and liabilities on the shares. This being so he will share in
the profits earned during the war to the extent of £1 per share.
Why should he share in the profits only to this extent? Why should
he not be entitled to sue for back dividends as well? If on the other
hand, the company were unsuccessful, a call of £3 might be made.
If a member cannot share in profits he ought not to share in losses,
and therefore he ought not to be liable for the call. But in practice
the case would work out as follows: the prohibition of intercourse
would prevent the making of the call on him during the war, but on
the return of peace the call would at once be made. Objection might
be taken on the ground that the call was made in consequence of
losses incurred during the war, but it would in practice be very
difficult to make good such an objection. . The call might be made a
month or two after the war, in which case the member would be
obliged to pay, though the losses were really incurred during the
Besides all this, the value of the shares themselves will have
depreciated. In short, if a loss is made, then the shareholder feels
the full brunt of it; if a profit is made, then he only gets a small
proportion of it, namely, the appreciation on the shares. Such a
result is grossly unfair to the shareholder. It is therefore submitted
that it would be unjust to hold that all his rights and liabilities both
to profits and to losses are suspended till the conclusion of the war,
as it would result in making the shareholder feel the full effect of
any losses incurred, whilst it would only allow him a very small
share in any profits earned.
Arguing the question on other grounds, it may be said that a share-
holder whose right to dividends is suspended is actually assisting the
enemy country. If he be entitled to no dividends on his shares in
the enemy company, then those dividends will be divided amongst
the other shareholders, who are alien enemies, and therefore the
enemy country will benefit much more than would be the case if
those dividends had to be placed to a suspense account pending the
war.
110678-19-
-7
90
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
termination of hostilities. The fact is that when once capital is in-
vested abroad, whether in shares or in debentures or in loans to
alien governments, the alien company and alien country are bene-
fited by the employment of this capital, and they are benefited all the
more if the investor foregoes his dividends or interest during war.
Again, suppose an Englishman were a stockholder in an American
corporation which had several houses of trade, one of which was in
France. On the outbreak of war between England and France it
would be impossible to interfere with the Englishman's investment,
yet all through the war he would be sharing in profits of a trade car-
ried on in enemy territory.
The choice really lies between full membership and concellation
of membership; if a shareholder is to remain a shareholder at all he
should be one in fact as well as in name.
The Boer War seems to have made no difference to those interested
in Transvaal companies. The Stock Exchange Year Books show
that whenever there were sufficient funds in hand preferred share-
holders have received their dividends and debenture-holders their
interest. The Order of the Court in the case of the Pretoria-Pieters-
burg Railway already referred to shows that the Court were of
opinion that the Transvaal Government did not cease to be a share-
holder in a company incorporated in England. Throughout the
whole war mining shares were freely dealt in on the London Stock
Exchange, their transference being greatly facilitated by the fact
that registers were kept in London as well as in the Transvaal.
Therefore on the ground of convenience, if on no other, it is sub-
mitted that, generally speaking, shareholders and debenture-holders
will retain their securities on the outbreak of war, that they will
remain shareholders and debenture-holders in fact and not only in
name, and will be entitled to profits earned and interest accrued
during hostilities, subject to the condition that no interest will be
paid on debentures after maturity. The only cases where the
analogy to a partnership is sufficiently strong are those of directors
in private companies or corporations and partners in commandite
companies. In these cases the director or partner should drop out
of the concern on the terms laid down by Dr. Baty.
These problems are of the greatest importance to commercial men,
but in spite of the Transvaal war they still await solution. As mat-
ters stand at present, the position of the foreign investors would
probably be settled by a term in the treaty of peace concluding the
But such a course rather savours of applying the remedy after
the mischief is done. To give aliens a certain time after the out-
break of war to realize their investments and take away the pro-
ceeds may commend itself to some. This would be somewhat analo-
gous to the custom of permitting enemy ships in territorial waters
war.
NATIONALITY OF CORPORATIONS,
91.
on the outbreak of war a certain time to return home. But such a
course would not work very well in practice, and is at the best merely
a' makeshift.
A suitable clause might be inserted in the Articles of Association,
but even then an inquiry into the problem would not be avoided, for
it would first be necessary to determine whether or not such a clause
would be void through illegality.
To provide by the Articles that an alien shareholder should retain
his shares after the outbreak of war and receive dividends accrued
thereon on the termination of hostilities, though it is here submitted
would be perfectly legal, might possibly be held to be as illegal as a
clause in a partnership deed providing for the continuation of the
partnership after the partners become enemies. On the other hand,
to provide that an enemy shareholder should receive from the com-
pany the value of his shares as on the day when war breaks out might
conflict with the law under which the company is incorporated, as in
effect it permits a company to purchase its own shares.
Law Quarterly Review, Vol. XX, pp. 174–185.
Test of enemy character.
At the time of the South African War new and important ques-
tions arose with regard to the legal position of debenture-holders
and shareholders in companies incorporated or trading in an enemy
country. For the purpose of maritime capture, the enemy character
of property, as has already been pointed out, is determined by the
British and American Courts, not by considering the nationality of
the owner, but by reference to his trade or war domicile. Bluntschli
criticises what he regards as an artificial creation of nationality rest-
ing exclusively on domicile; and others disapprove of this continu-
ance of a “superannuated rule.” “Il se fait que loin d'avoir innové,
la Grande-Bretagne et les États-Unis sont demeurés fidèles à une
règle vieillie."
Amongst the subjects suggested by the British Government for
consideration at the International Naval Conference was "the ques-
tion whether the nationality or the domicile of the owner should be
adopted as the dominant factor in deciding whether property is
enemy property.” In the final protocol, Art. 58 states:—“The neutral
or enemy character of goods found on board an enemy vessel is deter-
mined by the neutral or enemy character of the owner.” But the
very question as to what constitutes the enemy character of the
owner was left undecided. It appears that at the Conference opin-
ions were divided as to whether the criterion thereof should be
domicile or nationality. The General Report presented to the Con-
ference on behalf of its drafting committee says: “It was hoped
92
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
that a compromise might have been reached on the basis of a clause
to the following effect:-
The neutral or enemy character of goods found on board an enemy vessel
is determined by the neutral or enemy nationality of their owner, or, if he is
of no nationality, or of double nationality (i. e., both neutral and enemy), by
his domicile in a neutral or enemy country;
6. Provided that goods belonging to a limited liability or joint stock com-
pany are considered as neutral or enemy, according as the company has its
headquarters in a neutral or enemy country.'"
But there was no unanimity on this suggested clause. The British
representatives were prepared to make a concession and adopt the
principle of nationality as the underlying criterion; but opinions
differed at the Conference, just as the practices of States have dif-
fered hitherto. There is a probability, however—as is suggested in
the report of the British delegates to Sir Edward Grey--that the
International Court will eventually adopt the principle of domicile.
Phillipson, pp. 91–93; Bluntschli, p. 309.
Place of incorporation and domicile.
It is conceived that a corporation derives its national character
from the State under whose laws it is incorporated. So that a com-
pany incorporated in enemy territory is an enemy company, irrespec-
tive of the domicile or nationality of the individual members. To
the extent of a member's interest in, and direct active association with,
such a company will the member himself so far be considered of hos-
tile character. An enemy company cannot sue in our Courts, even
if our own subjects would ultimately benefit thereby; nor should
it be allowed a persona standi in judicio simply on account of its
having been incorporated here, for its house of business may be in
enemy territory, and its main interests may likewise be centred
there. But if it is only incorporated abroad, and carries on its busi-
ness here and consists only of British subjects, it would be allowed a
persona standi. Moreover, there have been some decisions which in-
dicate that a company may, for certain purposes, be regarded as re-
siding not only within the territory where its principal place of
business is situated, but also wherever it possesses branch establish-
ments; that is, that at one and the same time it may have more than
1 Cf. tbe cases of the English R. C. Colleges in France and the Irish R. C. Colleges in
France (2 Knapp, 51), where it was held that corporations pursuing their operations in
France and there incorporated could not claim as British institutions, notwithstanding
the fact that they consisted of British subjects.
The German Code of Civil Procedure, ſ 19, says: The Court of general jurisdiction
for communities, corporations, and all companies, associations, or other combinations of
persons, and all foundations, establishments, and collections of assets or property, which
can be sued as such, is determined by their seat. Unless some other seat is plainly discov-
erable, the place where the management of the concern is carried on is held to be the
seat."
Cf. the Belgian statute of May 18, 1873, art. 129: “ Toute société dont le principal
établissement est en Belgique, est soumise à la loi belge, bien que l'acte constitutif ait
été passé en pays étranger."
NATIONALITY OF CORPORATIONS.
93
one domicile. But, usually, the locality of the head establishment
has been taken to decide the domicile.2
In the case of the South African War, certain relaxations in re-
spect to trading companies were manifested. Many of the Transvaal
mining companies were tainted with enemy character, though most
of the shareholders were of British nationality or domicile. But the
peculiar circumstances pertaining to the war do not warrant our
concluding that the English practice in this case will necessarily be
regarded as furnishing authoritative precedents for its practice at
all times. Still less can we infer that other countries will adopt such
action. At all events, it is practically certain that in future a bellig-
erent State, in considering the rights and widespread interests of
trading companies, will have regard rather to the real nature of the
shareholders' position than to their technical character, arising
from the too rigorous application of abstract rules and formulae.
The confiscation or sequestration of property generally, corporeal or
incorporeal, will in future be unlikely.
Phillipson, pp. 94-96.
Position of shareholders and partners.
In theory, the rights of shareholders in a limited company are
contractual rights; and hence, on the outbreak of hostilities, such
contracts as exist between an English company and an enemy share-
holder, or between an English shareholder and an enemy company,
ought at once to be dissolved in consequence of their executory na-
ture. Theoretically they involve a continuing liability, on the one
side, for calls on the shares, and an obligation, on the other, to pay
a periodical interest; and further a continuing right on the part of
the shareholders to assist in the management of the company's busi-
ness. This view is held by various writers, who would therefore ap-
ply the doctrine of non-intercourse, and effect an abrogation of the
said contracts.
Calvo 3 states that the rule prohibiting individuals from entering
into contracts with the enemy applies equally “aux associations
commerciales formées entre les sujets des deux nations avant ou après
la déclaration de guerre." It is doubtful whether this statement is
meant to include companies as well as partnerships. Lord Lindley
says that Ex parte Boussmaker 4 seems to indicate that a person who
is a member of a company, and becomes an alien enemy by an out-
break of war, would not ipso facto cease to be a member; but that his
rights and liabilities would be simply suspended whilst the war con-
1 Cf. Carron Co. v. Maclaren, 5 H. L. C. 416 ; Lewis V. Baldwin, 11 Beav. 153.
2 Cf. Jones v. Scottish Acc. Insur. Co., 17 Q. B. D. 421; Brouen x. L. & VIP. Ry. Co.,
4 B. & Sm. 326; Shields v. G. N. Ry. Co., 7 Jur. N. S. 632; Adams u. G. W. Ry. Co., 6
H. & N. 404.
§ 1930.
4 13 Ves. 71.
94
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tinued, and on the restoration of peace they would be legally enforce-
able. The case cited, however, scarcely goes to that extent. It
merely decides that on the resumption of peace an alien's rights
to recover a dividend on a bankruptcy revives, the liability having
arisen out of a contract entered into before the commencement of the
war. Dr. Baty holds that the existence of the incorporated com-
pany will continue, but such members of it as have become enemy
will drop out of the company, and will have a right to receive the
value of their respective shares as on the day of the outbreak of the
war. But having at the same time been deprived of their persona
standi, they will not be able to enforce their claims until the con-
clusion of peace. Dr. Baty's conclusion is based on a consideration
of the effect of war on partnerships; but he scarcely takes sufficient
account of the differences existing between the two sets of conditions.
It is quite true that all existing commercial partnerships between the
subjects of opposing belligerents are, as executory contracts, ipso
facto dissolved by the 'outbreak of war; and any new partnership
formed while war lasts will be illegal, even if intended to come into
operation only after peace is concluded. In Griswold v. Wad-
dington, Spenser, J., recalls an analogous rule in Roman law which
enforces the dissolution of a partnership when such circumstances
arise as necessitate a cessation of the business. “ The state of war
creates disabilities, imposes restraints, and enacts duties altogether
inconsistent with the continuance of the relation
and the
rule prescribed by Roman law is applicable: 'Si alicujus rei societas
sit et finis negotio impositus est, finitur societas.'” In the same
case, Chancellor Kent adduces two reasons which make dissolution
indispensable. In the first place, in virtue of the rule of non-inter-
course, the power of mutual control of the partners disappears.
Secondly, a person should not be allowed to derive any profit out of
his partner's trade in the enemy country. A third reason is given by
Hall, that after the war is terminated it is impossible for the part-
ners to pick up the threads of the business at the point where they
were abandoned. Hence, mere suspension being impossible from the
necessary circumstances of the case, the only remaining course is
dissolution.
Now if companies are in their essence analogous to partnerships,
these reasons must necessarily apply equally to them; if so, the out-
break of war will at once effect a dissolution of companies.
On the contrary, there are important differences between com-
panies and partnerships, and these differences taken in their entirety
*
1“ International Law in South Africa (London, 1900), p. 94 seq.
2 Griswold v. Paddington (1819), 16 Johns, 438, cited by Willes, J., in Esposito v.
Bouden (1857), 7 E. & B. 785.
3 P. 390.
NATIONALITY OF CORPORATIONS.
95
must create a fundamental distinction between the two cases. A com-
pany is a legal person, and continues to exist if a shareholder should
withdraw; but if a partner retires, the partnership is extinguished.
The liability of a shareholder is limited, a partner's is unlimited.
The control exercised by a shareholder in the case of most companies
is slight; a partner's is so great that he is entitled to bind the firm.
A shareholder can usually dispose of his shares with ease, but not
so a partner. Frequently a company consists of a large number of
shareholders; the number of partners in a firm is generally small.
Some of these differences, however, scarcely apply in the case of
some private companies, whose shareholders are for the most part
few, exercising greater control, and are more able than those of other
companies to sell their shares. Nevertheless it is clear that the rea-
sons advanced for the dissolution of partnerships are not similarly
operative in the case of most companies. Mutual control not being
indispensable, the principle of non-intercourse has little or no effect;
and it is scarcely detrimental to national policy to allow an enemy
shareholder to retain his rights and liabilities during the war, es-
pecially as the control he can exercise is so slight. Suspension of
such rights and liabilities is just and practicable, seeing that the af-
fairs of the company remain in the control and management of its
directors and servants; but abrogation is a measure at once unneces-
sary and violent. And apart from considerations of fairness, expe-
diency, and feasibility, shares in a company are in point of fact rights
of property, though they may be technically regarded as contractual
rights, and as such they cannot now be lawfully confiscated on the
outbreak of war.
The tendency of modern law, both private and international, is to
pass away from abstractions and technicalities, and to take cogni-
zance of realities and actual conditions as they exist here and now. It
is conceived, then, that the only necessary measure, in accordance
with an equitable interpretation of the doctrine of non-intercourse, is
to suspend merely the payment of interest until the resumption of
peace. This suspension, moreover, need not amount to a total dis-
continuance, for it is not conceivably antagonistic to the interests of
law or national policy to permit the interest to accrue till the end of
hostilities. The network of commercial transactions has become so
far-reaching and complex, and the interests involved in trading re-
lationships so great, that it is necessary to afford such security to for-
eign investors as will encourage them to furnish capital for large
business undertakings. Of course, the legal position of a company
which provides a belligerent with means for the prosecution of war
will be quite different.
Phillipson, pp. 96-102.
96
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Position of directors of companies.
In the case of a private company, the directors will usually exercise
the entire control. Hence, should an outside shareholder become
stamped with enemy character, his rights and liabilities ought also
to be allowed to continue. But if a private company in this country
opens a branch establishment in another country, and afterwards war
breaks out between them, the director controlling the branch, being
thus stamped with enemy character, would rightly drop out of the
company, for the nature of his control really constitutes him a part-
ner with limited liability.
The exact position of directors of ordinary companies, in case of
is somewhat more difficult to determine. A person who is a
director is also a shareholder. If the principles considered above
hold good, it follows that his contract, quâ director, will be abrogated.
The principle of agency can scarcely have any real validity here, as
it would appear more in the nature of a fiction than of reality. In a
private company, the director, if he becomes an enemy, would cease
to be a director as well as a shareholder.
Phillipson, pp. 102-103.
war,
Enemy debenture-holders.
With respect to the enemy debenture-holder, it is probable that
Courts will not allow him to lose his principal, as a consequence of
the Statute of Limitations running during the war. In the United
States Courts this is well established. In Hanger v. Abbott, the
Supreme Court held that“ peace restores the right of the remedy, and
as that cannot be if the limitation continues to run during the period
the creditor is rendered incapable to sue, it necessarily follows that
the operation of the statute is also suspended during the same period.”
This ruling has been followed in America in several cases, but it
does not appear to be generally accepted in England. In only one
English case 3 was judicial opinion-adverse to the American ex-
pressed on the matter, but it was in the form of an obiter dictum, and
will now hardly be considered to have the weight of a precedent.
Phillipson, pp. 103, 104.
The effect of war on corporations.
It now remains to deal with the effect of war on the corporation,
an institution which is something more than a mere contract of part-
nership, though, like the latter, it originates in agreement.
The subject will be considered
(1) from the point of view of the corporation itself;
(2) from the point of view of its members.
16 VVall. 532.
2 Semmes v. Hartford Insur. Co., 13 Wall. 160; Brown y. Hiatts (1870), 15 Wall. 177.
3 De IVahl v. Braune, 25 L. J. (N. S.) Ex. 343.
NATIONALITY OF CORPORATIONS.
97
It is settled law that a corporation is a juristic person. It is an
entity independent of the aggregate of its members and has a legal
character and existence of its own. It partakes, however, of the na-
ture of a partnership as well as of a natural person.
“The domicile of a corporation is the place considered by law to
be the centre of its affairs, which-
“(1) in the case of a trading corporation is its principal place of
business, i. e., the place where the administrative business of the
corporation is carried on,
“(2) in the case of any other corporation, is the place where its
functions are discharged." 1
A company-the most familiar form of a corporation—will be
fixed with a hostile or friendly character by its domicile without
reference to the nationality of the shareholders.
The outbreak of hostilities dissolves commercial partnerships be-
tween enemies, because-
(1) A state of war involves the cessation of all commercial inter-
course the essence of a partnership-between the subjects of the
belligerents.
(2) A partnership could not be suspended, since it would be im-
possible to pick up its threads again on the return of peace.
These considerations do not as a rule apply to corporations, be-
cause it is quite possible for the members of a hostile limited liability
company, for example, to abstain from all interference with its af-
fairs so long as hostilities continue, without doing themselves or the
company any harm.
It follows, therefore, that, as a general rule, war will not affect the
existence of corporations at all.
Circumstances can, however, arise under which the dissolution of a
company would be inevitable-
(1) In a company with 997 shares A and B hold 496 shares each
and the remaining five shares are held by five nominal partners.
War breaks out and A and B become enemies. Here the analogy
with a partnership is too close for the company to continue to exist.
It will have to be wound up, the shares of the enemy shareholder
being reserved.
(2) It is conceived that in the above case the company would cease
to exist in England even if one of the nominal shareholders became
an enemy, as there would no longer be seven members to keep it
alive. The Companies Act must be taken to mean that each one
of the minimum number of seven shareholders essential in a com-
pany must be an effective shareholder.
1 Dicey, Conflict of Laws, 2nd ed., p. 160.
98
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
(2) The Shareholders.—The rights of the shareholders in respect
of a company are not jura in personam, but rather jura in rem. The
members as such have a status which entitles them to certain benefits:
they are not the mere promises in a contract.
This distinction has an important bearing on the subject in hand.
(a) An enemy does not ipso facto cease to be a shareholder any
more than an enemy proprietor of immovable property is divested of
lis estate. War has the same effect on dividends that accrue as it
has on the rents of lands and houses becoming due to an enemy.
(b) The position of a director involves continual commercial inter-
course with his colleagues. An enemy would, therefore, ipso facto,
cease to hold this office, though he would of course continue to be
a shareholder.
(c) Where, laowever, a person cannot cease to be a director without
ceasing to be a shareholder as well, he will drop out of the company
altogether but he will retain a lien on the equitable value of his share
at the outbreak of the war.
(d) War will rescind allotments of shares to enemies, but a com-
pany's claim to outstanding calls on a share already alloted will not,
it is conceived, abate unless the calls fall due whilst the war con-
tinues. If such is the case, the contract to take the share will be dis-
solved, with effect from the beginning of the war, and the applicant
will be entitled to a return of the earnest money and the equitable
value of all calls paid to date.
Debentures are merely loans contracted by companies, and are af-
fected by war in exactly the same manner as ordinary debts.
Latifi, pp. 54–58.
Domicile of corporations.
With respect to corporations, the domicile of a corporation is the
place which is considered by law to be the centre of its affairs, irre-
spective of the nationality or residence of its members. In the case
of a trading corporation, this is understood to be its principal place
of business; the place, that is, at which it has its central office and
chief management. This centre of administration and control will
generally, although not necessarily, be the place at which the cor-
poration is incorporated or registered; but it will often not be identi.
cal with the place at which its industrial operations are carried on.?
Cobbett, pt. 2, p. 26.
1 See Dicey, Confict of Laws, 2nd ed. 160 et seq.; Janson v. Driefontein Consolidated
Mines (1902, A. C. 484, at 501); The Society for the Propagation of the Gospel v.
Wheeler (2 Gall. 105).
2 But corporations, although domiciled in one country, are often deemed to be resident
in some other country, where they carry on business, for such purposes as liability to
local taxation or the jurisdiction of the Courts; The Cesena Sulphur Co. v. Nicholson
(L. R. I Ex. D. 428); De Beers Consolidated Mines v. Howe (1906, A. C. 455); Bowden
Bros. v. Imperial, &c. Insurance Co. (2 N. S. W. St. R. 257).
NATIONALITY OF CORPORATIONS.
99
Effect of war on corporations.
Interests in Commercial Corporations and Companies.-A cor-
poration is itself a juristic person, and as such takes its character in
war, as friendly or hostile, in general from its domicile, irrespective
of the nationality of its directors or shareholders. Nevertheless
war may produce important effects on the legal position of enemy
persons having interests in such associations. In English and Ameri-
can law, indeed, this question does not appear to be covered by any
direct authority. But on principle and analogy it would seem
(1) that enemy directors would ipso facto vacate their seats, although
retaining otherwise such rights as belong to enemy shareholders;
(2) that enemy shareholders would retain their shares as property,
although both their right to receive dividends and probably their
obligation to pay calls would be suspended during the war both re-
viving, however, on the return of peace; and (3) that enemy deben-
ture holders would retain their security, whatever its form, although
the right to receive interest thereon or such part of the principal
as might accrue due during the war, would be suspended, both re-
viving, however, on the restoration of peace.
Cobbett, pt. 2, pp. 89, 90.
The national character of a corporation is primarily determined
by the country under the laws of which it has been incorporated,
and not by the nationality of its members (Janson v. Driefontein
Consolidated Mines, Limited, 1902, A. C. 484). A supplementary in-
corporation in another country will not effect a change in nationality.
Thus in Nigel Gold Mining Company v. Hoade, 1901, 2. K. B. 849,
where a company registered in Natal, whose only property was a gold
mine in the Transvaal, obtained a supplementary incorporation in
the latter country in order to enable it to sue and be sued there in its
corporate name, it was held to be a British company, and to be en-
titled to recover on a policy of insurance for a loss occurring during
the South African war. It would appear, however, that a corpora-
tion may have a commercial domicile in the country where it car-
ries on business, and thus acquire an enemy character by continuing
to conduct such business therein after the outbreak of war between
that country and Great Britain (Nigel Gold Mining Company v.
Hoade, 1901, 2 K. B. 849; Lord Lindley's judgment in Janson v.
Driefontein Consolidated Mines, Limited, 1902, A. C. 505; Nether-
lands South African Railway Company v. Fischer, 1901, 18 T. L. R.
116; see also De Beers Consolidated Mines, Limited v. Howe, 1906,
A. C. 455, where it was held that a foreign corporation could "re-
side” in this country within the meaning of the Income Tax Act,
1853; but see the definition of enemy in Article 3 of the Trading
with the Enemy Proclamation, No. 2, dated 9th September, 1914
非 ​.
100
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Domicile in a territory in the military occupation of the enemy,
especially if such occupation be temporary, does not impress a person
with enemy character (Hagedorn v. Bell, 1813, 1 M. & S. 450; see
also De Jager v. Attorney-General of Natal, 1907, A. C. 326). The
territory must be under the full sovereignty of the enemy.
Trotter, pp. 15, 16.
Enemy shareholders and debenture-holders.
“The shares and debentures of companies incorporated under
British law which are held by enemy subjects at the outbreak of a
war will not cease to exist, but must continue as properties, what-
ever be decided as to the ownership of those properties. There is
therefore no alternative, but either to confiscate them for the benefit
of the British Government, which in many cases would be contrary
to treaty and in all cases is now out of the question, or to regard the
enemy shareholders and debenture-holders as continuing to be such.
To strike out the enemy subjects from the lists of persons interested,
without more, would practically be to confiscate their properties for
the benefit of the other shareholders, a proceeding which would be
grotesque in its injustice, and which would fall within the spirit, if
not within the letter, of treaties prohibiting confiscation. But the
dividends on the shares and the interest on the debentures, so far as
not represented by coupons payable to bearer, and of which therefore
the ownership would not be apparent to the companies, cannot be
paid to the enemy subjects during the war. After its close they will
be entitled to claim the back dividends and interest, but not to in-
terest on debentures after their maturity, subject, in the case of
shareholders, to their paying any calls made in the meantime. And
the prohibition of commercial intercourse with enemy subjects will
during the war prevent the shareholders from exercising voting
powers, while the enemy directors, who cannot continue to fill their
places while their duties would be in suspense, must be regarded as
deprived of that character from the outbreak.” (Westlake's Inter-
national Law, vol. ii, pp. 49–50; see also Lindley's Treatise on Com-
pany Law, 6th edition, vol. i, p. 53.)
Trotter, p. 47.
The nationality of corporations is one of the most actively dis-
cussed questions of the law of continental "Europe. While some
writers dispute the possibility of corporate nationality, the fact that
the legislation of practically all countries takes account of foreign
corporations, has persuaded publicists to endeavor to establish the
criteria of a national corporation. In some countries, little help is
obtained from positive legislation.
NATIONALITY OF CORPORATIONS,
101
A corporation may be attached to a territory by three elements.
The first is the place where it is created or founded, where the legal
formalities of its constitution, authorization and inscription have
been carried out. The second is the place where the home office, the
active management or center of administration, or what the French
call the siège social is located. The third is the place where it car-
ries on the purpose of its organization, its actual operations, its cen-
ter of exploitation (principle exploitation). When these three
elements are combined in one country, it is hardly open to question
that the corporation has the nationality of that country. But when
the three elements or some of them are located in different countries,
the nationality of the corporation is not always easy to determine.
Taking into consideration the three factors mentioned and some
others, the following systems as to the determinative criterion of the
nationality of a corporation have all had their adherents: It is gov-
erned (1) by the nationality of the state which authorizes its exist-
ence (Fiore and Weiss); (2) by that of the state within whose juris-
diction it has been organized (Brunard and Cassano); by the na-
tionality of the stockholders (Vareilles-Sommières); (4) by that of
the country of subscription or domicile of the majority of the stock-
holders at the time of subscription (Thaller); (5) by that of the
country where it has its principal place of business, a system fol-
lowed, with variations, by the legislation of most countries; (6) the
jurisdictional judge may determine the nationality on all the facts.
Other solutions have been offered, e. g., that the will of the corpora-
tion or of the state should alone determine its nationality.
Leaving aside all theoretical arguments, it may be said that the
majority of states in their legislation have aocepted the country of
domicile (siège, Sitz) as the nationality of the corporation. The
question then arises, is the domicil the center of administration, the
home office,” or is it the center of exploitation, where the business
is carried on. Among the countries of Europe-with the exception
of Spain, which attributes Spanish nationality to corporations incor-
porated in Spain or administered from, or doing business in Spain,
and of Italy, Portugal, and Roumania, which consider as domestic
corporations those doing business within their borders (center of
exploitation)—the majority adhere to the system by which nation-
ality follows the country in which the center of administration (the
siège social) is located.
In Anglo-American law no such theoretical conflicts as have pre-
vailed in continental law appear to have found a place. The con-
ception of domicil with respect to corporations has been applied in
cases of taxation and of belligerent rights and for these purposes, the
seat of the corporation has on occasion been considered the place
3
102
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
where the business is carried on. For other purposes, the question
of domicile and nationality is decided by practical considerations, the
most important of which is the place of incorporation.
In the United States the citizenship of corporations is judged al-
most exclusively according to the place of incorporation, which in-
volves, in most municipal cases, the determination of state citizen-
ship. Only thirteen states even require residence on the part of any
of the incorporators and only six require state citizenship. New
York appears to be the only state demanding United States citizen-
ship. While the courts have made numerous distinctions between
natural persons and corporations in the matter of citizenship, they
have held a corporation to be a citizen for the purposes of suit under
the federal constitution, and under the Act to provide for the adjudi-
cation and payment of claims arising from Indian depredations.
The Supreme Court, moreover, has held that for jurisdictional pur-
poses there is a conclusive presumption of law that the persons com-
posing the corporation are citizens of the same state with the cor-
poration, and although an artificial person,” a corporation is to be
considered as a citizen of the state as much as a natural person."
While it has been held that a corporation could be an alien enemy
as well as an individual, it has not been definitely established whether
the place of incorporation governs enemy character, or whether this
is determined according to each place where the corporation has a
branch and does business. In earlier cases, the place of actual busi-
ness has been held to control; more recently, however, it has been
held in England that the place of incorporation and registration, and
not the place of operation governs. The British proclamation of
September 9, 1914, in regard to trading with the enemy, provides
that in the case of incorporated bodies, enemy character attaches only
to those incorporated in an enemy country. On the other hand, for
the purposes of the effect of war on patents, designs and trade-marks,
a British corporation controlled by or carried on wholly or mainly
for the benefit of subjects of an enemy state, was to be deemed an
alien enemy.
In the matter of diplomatic protection, the United States and
Great Britain have considered themselves entitled to interpose in
behalf of a corporation incorporated under its laws or those of a
constituent state, on the theory that the company is clothed with the
nationality of its creator, regardless of the citizenship of the bond-
holders or stockholders. General claims conventions concluded by
the United States usually provide for the adjudication of “all claims
on the part of corporations, companies or private individuals, citi-
zens of the United States," or the other claimant government. Even
1 Louisrille, etc., R. R. Co. v. Letson, 2 How., 497, 558; St. Louis & San Francisco R. R.
Co. V. James, 161 U. S., 545, 562.
NATIONALITY OF CORPORATIONS.
103
where the protocol was confined to “citizens” or “subjects," it has
been held by arbitral commissions to include corporations duly or-
ganized under the laws of the claimant government.
While American incorporation, therefore, affords a prima facie
title to American protection, no hard and fast rules governing pro-
tection can be laid down. The Department of State, in the exercise
of its discretion, requires evidence of the substantial American in-
terest in a corporation before protection is authorized. Thus the
Department uniformly requires the party in interest to place on file
a properly certified copy of the charter or articles of incorporation,
together with a duly executed instrument setting forth the owner-
ship-legal or equitable of the stock and bonds of the corporation,
including such a statement of the nationality of the holders as will
show in whom the greater part of the real beneficial interest lies.
Complete American ownership of the stock or bonds is by no means
required. When there is reason to believe that American incorpora-
tion was sought merely for the purpose of securing American pro-
tection for what is in fact a foreign-owned enterprise, the Depart-
ment is loath to extend its protection to the corporate entity. Such
protection has been refused in cases where the incorporators were
all aliens or where the majority of the stock was owned by nationals
of the country against which protection was sought, or where the in-
corporation has not been considered to represent sufficient American
interests. In a case where four-fifths of the American-owned stock
in an American corporation had, after the origin of the claim, passed
into foreign hands, it was considered within the discretion of the
Secretary of State to divide the claim and prosecute to satisfactory
adjustment only the bona fide American interest in the claim.
Again, while a duly organized American corporation is subject to
American consular jurisdiction in China and is entitled to registra-
tion as such, this does not necessarily imply that the corporation is
entitled to the diplomatic protection of the United States.
In the obverse case, a foreign corporation will not be denied pro-
tection, if a substantial interest in the corporation is owned by Ameri-
can citizens. Here again, it is impossible to lay down a rule as to the
proportion of stock which must be owned by American citizens. The
Department in the exercise of its discretion will look behind the
corporate entity to determine the nationality of the real parties in
interest. While there are many reasons in legal theory for declining
to protect an American stockholder in a foreign corporation, so long
as the corporation is a going' concern—and the United States has, at
times, on palpably valid legal grounds declined its protection in such
cases—the government has on numerous occasions intervened on be-
half of foreign corporations when it appeared that a substantial pro-
104
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
portion of the stock was owned by American citizens. In this prac-
tice, it has apparently been sustained by arbitral decisions.
In the case of a large American stock-holding interest in a foreign
corporation doing business in a third country, the Department has
occasionally instructed the American minister in the third country
to use his informal good offices on behalf of the American interest by
supporting the representations of the diplomatic representative of
the country in which the company had been incorporated. Good
offices are in fact frequently employed directly against a foreign gov-
ernment, the incorporator of a company in which an American citizen
is a substantial stockholder. Protection has been refused as against
such a Government when three-fourths of the stock appeared to be
owned by citizens of that government. Protection has also been
refused to an American corporation, owning the bulk of the stock of
a Mexican corporation, in the interest of a vessel of the Mexican cor-
poration flying the Mexican flag.
International tribunals which have passed upon the matter have
held in many cases that the nationality of the corporation and not
of its stockholders governs the jurisdiction of the commission. On
the other hand, citizens of the claimant government, stockholders in
or representing as liquidator a solvent corporation formed under the
laws of the defendant government, were denied standing before
arbitral commissions, when attempting to enforce a corporate claim.
That the nationality of the corporation rather than that of the
stockholders must control the jurisdiction of international tribunals
in claims growing out of corporate losses appears evident from the
fact that the corporation, the trustee, possesses the entire legal and
equitable title to a claim as part of the assets of the corporation,
whereas the stockholder possesses only an equitable right, enforceable
in a court of equity, to an accounting and to compel the proper man-
agement of the company by its directors. The stockholder, therefore,
having no legal title to the corporate property of a solvent corpora-
tion, can hardly be recognized by an arbitral tribunal acting under
the usual form of protocol as a proper party claimant, and only under
exceptional protocols, as will presently be noticed, has this been
done. While it is possible for 'a government, therefore, to prosecute
the claim of a national corporation from which foreign stockholders
will indirectly derive a benefit, “ the inconvenience on the one hand,”
as was said by the Supreme Court, “is completely destroyed by the
overwhelming preponderance of inconvenience which would exist on
the other; for, doubtless, whilst the alien corporator may be an excep-
tion, the corporator, who is both a citizen of the state and a citizen of
the United States, is the rule. To follow the argument, therefore,
would make the exception dominate and destroy the rule."
1U. S. v. Northwestern Express Co., 164 U. S., 686, 690.
NATIONALITY OF CORPORATIONS.
105
The question as to whether American corporations having foreign
stockholders could be admitted as "citizens " for the full value of the
claim, or only for the proportion of stock held by American citizens
was exhaustively argued in several cases before the Spanish Treaty
Claims Commission. The Government contended that only the Amer-
ican stockholders in American corporations could recover, and asked
the Commission to penetrate the fictitious person known as the cor-
poration and apportion the damages. The Commission declined to
apportion the damages. The Commission declined to apportion the
corporate damages, but decided
" that a corporation may prosecute a claim to adjudication and [the Com-
mission) reserves the right to determine, on final consideration, in case a claim
is established, whether any part of the reward shall inure to the benefit of a
shareholder who, as an individual, could not have prosecuted a claim to adjudi-
cation" (i. e., foreign stockholders in an American corporation).
It appears, in the few cases in which awards were made to Ameri-
can corporations, that no reduction was made because of the alien
ownership of some of the shares of stock.
In the case of Barron v. the United States, before the Mexican-
United States commission of 1868,2 Umpire Lieber held that the
British successors in interest of a Mexican corporation must stand
upon their own nationality as British subjects. In a peculiar dictum,
admitting the possible continued existence of the corporation, he
intimated that corporate organization could not cloak the real nation-
ality of the actual British claimants.
In two well-reasoned opinions in the Kunhardt claim against Vene-
zuela, it was held that the stockholders of a going corporation, not
being co-owners of the corporate property, cannot prosecute a cor-
porate claim on the part of the corporation or themselves. After
dissolution of the corporation, however, they become equitable owners,
in proportionate parts, of the corporate property, subject, however,
to the payment of the corporate debts. Kunhardt and Co., there-
fore, were given a standing as the American owners of stock in a
dissolved Venezuelan corporation but damages were not assessed in
their favor owing to lack of evidence of the corporate liabilities.
In the Delagoa Bay arbitration 4 and the Salvador Commercial
Company case, a thorough examination into the question of the right
of American stockholders in a foreign corporation to prosecute claims
for their share of the losses of the corporation was precluded by the
terms of the protocol, which made the shareholders the parties
claimant. It may be said, however, that the foreign corporations
1
1 Order No. 504, Feb. 3, 1904, Fuller's, Special Report, 1907.
2 Moore's Int. Arb., 1520, 1523.
3 Ralston's Report, p. 63.
4 Moore's Int. Arb., 1865 et seg.
5 For. Rel. 1902, 857, 862-873.
11067819 8
106
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
in both cases were practically defunct, and the equitable interest of
the stockholders could with some justice be supported, as it was, by.
their government. In the cases of Cerruti against Colombia 1 and
Alsop against Chile, claimants were members of a firm established
under the laws of the defendant government and by its law regarded
as a juridical person and national entity. President Cleveland in
the first case and his Britannic Majesty in the second considered
themselves empowered, under the terms of submission, to award
indemnities to the individual firm members on whose behalf the
claimant government, of which they were citizens, prosecuted the
claim.
Borchard, pp. 617–626.
The case of the Caracas waterworks.
“Filtz, Umpire:
“The umpire having examined and studied the documents in the
record and considering:
“ That article 1 of the protocol of Washington declares that the
Commission has jurisdiction to examine and decide all Belgian claims
against the Republic of Venezuela which have not been settled by
diplomatic agreement between the two governments, and which may
have been presented to the commission by the Belgian Government
or by the Legation of Belgium at Caracas;
“That the present claim has not been settled by diplomatic agree-
ment between the two governments, and that it has been presented
to the Commission by the agent of the government at Caracas;
“That the claimant company's Belgian character has not been
disputed, and that it has not lost it, because among the holders of
the bonds which have been issued by the Government of the Republic
persons of a different nationality are found;
For these reasons declares that the commission has jurisdiction
and orders that it proceed to decide upon the merits without delay."
“ (Venezuelan Arbitrations of 1903, prepared by J. H. Ralston
[Washington, 1904], pp. 275–76.)”
Stowell and Munro, vol. I, pp. 325-326.
The Alsop claim.
Failing to get settlement from either Chile or Bolivia, the firm
invoked action by the Government of the United States. While
still considering Bolivia as liable for the original debt under the
Wheelwright contract, the Government of the Untied States con-
tended that a claim for the amount might justly be made upon
Chile. This was done before the Claims Commission of 1890, and
again in 1894, but was dismissed on the ground that the firm was a
1 For. Rel. 1898, 245.
2 5 Amer. J'n'l Int. Law, 1079.
NATIONALITY OF CORPORATIONS.
107
“ * juridical entity possessing Chilean nationality.” The same treat-
ment was given to the claim by another Claims Commission in 1901,
but on that occasion the agent of Chile made the statement that "in
order to induce the Bolivian Government to sign the definite treaty
of peace which has been negotiated for many years, the Chilean
Government offers to meet this and other claims as part of the pay-
ment or consideration which it offers to Bolivia for the signature of
the treaty.” To that end it was finally agreed by treaty in 1904 that
Chile should appropriate 2,000,000 pesos in gold to discharge certain
obligations of Bolivia, among which the Alsop claim was specified,
and 4,500,000 for certain other claims.
Stowell and Munro, vol. I, p. 328, award pronounced by His Majesty
King George V as Amiable Compositeur between the United States
and Chile, July 5, 1911.
4 A
The Alsop claim - Contention of United States.
In its case and counter-case in support of the claim, the Govern-
ment of the United States emphasized the fact that “the firm of
Alsop and Company, whatever its status may have been as a matter
of mere legal fiction, was in essence and in fact wholly American,
and that its members, being American citizens, investing their own
American capital, the Government of the United States had a right
to make and to continue to make its representations in behalf of these
American citizens, and for the protection of this American property
in respect to any and all actions which in the judgment of the Gov-
ernment of the United States were injurious and contrary to the law
of nations.” Several precedents were cited in support of its action,
among them the Cerruti case in Columbia and the Delagoa Bay
Railway case. The real parties in interest were not the artificial
entity of Alsop and Company, but the American citizens who com-
posed the firm,” or, as the protocol put it, " the claimants in the
Alsop claim," all of whom were citizens of the United States.
Stowell and Munro, vol. I, p. 329.
The Alsop claim Contention of Chile.
The Government of Chile on its part, contended that the claim
was not one for the United States to press, for quoting the Commis-
sion of 1901, the firm of Alsop and Company “was duly created,
incorporated, and registered under the Chilean law," and hence was
a juridical person of Chilean domicile. This left the claim a matter
for the Chilean courts, not for diplomacy, but on no occasion had
the Alsops “put forward the slightest claim, either to the Govern-
ment of Chile or to her tribunals, for the payment of this debt.”
Stowell and Munro, vol. I, pp. 330, 331.
108
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
The Alsop claim-Award.
"Now therefore we, George, by the Grace of God, of the United
Kingdom of Great Britain and Ireland and of the British Dominions
beyond the Seas King, Defender of the Faith, Emperor of India,
do hereby award and determine that the sum of two million two
hundred and seventy-five thousand three hundred and seventy-five
bolivianos is equitably due to the representatives of Alsop and
Company."
Stowell and Munro, vol. I, p. 334.
Bank of the United States v. Deveawx, 5 Cranch, 61. Opinion of
Marshall, Ch. J. "Aliens, or citizens of different states, are not less
susceptible of these apprehensions, nor can they be supposed to be
less the objects of constitutional provision, because they are allowed
to sue by a corporate name. That name, indeed, can not be an alien
or a citizen; but the persons whom it represents may be the one or the
other; and the controversy is, in fact and in law, between those per-
sons suing in their corporate character, by their corporate name,
for
a corporate right, and the individual against whom the suit may be
instituted. Substantially and essentially, the parties in such a case,
where the members of the corporation are aliens, or citizens of a dif-
ferent state from the opposite party, come within the spirit and terms
of the jurisdiction conferred by the constitution on the national
tribunals.
*
*
*
“The controversy is substantially between aliens, suing by a cor-
porate name, and a citizen, or between citizens of one state, suing
by a corporate name, and those of another state. When these are
said to be substantially the parties to the controversy, the court does
not mean to liken it to the case of a trustee. A trustee is a real per-
son, capable of being a citizen or an alien, who has the whole legal
estate in himself. At law, he is the real proprietor, and he represents
himself, and sues in his own right. But in this case, the corporate
name represents persons who are members of the corporation. If
the constitution would authorize congress to give the courts of the
Union jurisdiction in this case, in consequence of the character of the
members of the corporation, then the judicial act ought to be con-
strued to give it, for the term citizen ought to be understood, as it is
used in the constitution, and as it is used in other laws. That is, to
describe the real persons who come into court, in this case, under
their corporate name.
“That corporations composed of citizens are considered by the
legislature as citizens, under certain circumstances, is to be strongly
inferred from the registering act. It never could be intended, that an
American registered vessel, abandoned to an insurance company com-
NATIONALITY OF CORPORATIONS.
109
posed of citizens, should lose her character as an American vessel;
and yet this would be the consequence of declaring that the members
of the corporation were, to every intent and purpose, out of view and
merged in the corporation.”
The Society for the Propagation of the Gospel in Foreign Parts v.
New Haven, 8 Wheat. 464.--The Court said: “When the defend-
ants' counsel contends, that the incapacity of this corporation to hold
lands in Vermont, is a consequence of the revolution, he is not under-
stood to mean, that the destruction of civil rights, existing at the
close of the revolution, was, generally speaking, a consequence of the
dismemberment of the empire. If that could ever have been made a
serious question, it has long since been settled in this and other
courts of the United States. In the case of Dawson's Lessee v. God-
frey (4 Cranch 323), it was laid down by the judge who delivered
the opinion of the court, that the effect of the revolution was not to
deprive an individual of his civil rights; and in the case of T'errett v.
Taylor (Cranch-43) and of Dartmouth College v. Woodward (4
Wheat. 518), the court applied the same principles to private cor-
porations existing within the United States at the period of the
revolution. It is very obvious, from the course of reasoning adopted
in the last two cases, that the court was not impressed by any circum-
stance peculiar to such corporations, which distinguished them, in
this respect, from natural persons; on the contrary, they were placed
upon precisely the same ground. In Terrett v. Taylor, it was stated,
that the dissolution of the regal government, no more destroyed the
fights of the church to possess and enjoy the property which be-
longed to it, than it did the right of any other corporation or indi-
vidual, to his or its own property. In the latter case, the chief justice,
in reference to the corporation of the college observes that it is too
clear to require the support of argument, that all contracts and rights
respecting property remained unchanged by the revolution; and the
same sentiment was enforced, more at length, by the other judge who
noticed this point in the cause.
The counsel, then, intended, no doubt, to confine this objection
to a corporation consisting of British subjects, and existing in its
corporate capacity, in England, which is the very case under con-
sideration. But if it be true, that there is no difference between a
corporation and a natural person, in respect to their capacity to hold
real property; if the civil rights of both are the same, and are equally
unaffected by the dismemberment of the empire, it is difficult to per-
ceive, upon what ground, the civil rights of a British corporation,
should be lost, as a consequence of the revolution, when it is admitted,
that those of an individual would remain unaffected by the same
ircumstance.
*
**
*
110
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
“Was it meant to be contended, that the plaintiffs are not within
the protection of this article, because they are not persons who could
take part in the war, or who can be considered by the court as British
subjects? If this were to be admitted, it would seem to follow, that
a corporation can not lose its title to real estate upon the ground of
alienage since, in its civil capacity, it can not be said to be born under
the allegiance of any sovereign. But this would be to take a very
incorrect view of the subject. In the case of the Bank of the United
States v. Deveaux (5 Cranch 86) it was stated by the court that a
corporation, considered as a mere legal entity, is not a citizen, and
therefore, could not, as such, sue in the courts of the United States,
unless the rights of the members of it, in this respect, could be exer-
cised in their corporate name. It was added, that the name of the
corporation could not be an alien or a citizen; but the corporati
may be the one or the other, and the controversy is, in fact, between
those parties and the opposing party.”
Terry v. Imperial Fire Insurance Co. 23 Federal Cases #13,838.-
The Court said: “The reasoning upon which those decisions rest,
applies with equal force to the question involved in this case, and is
decisive of it. It has been repeatedly decided that a body corporate,
organized under the laws of a state, is to be treated as a citizen of
that state, so far as the question of jurisdiction of this court is con-
cerned. In other words, when a corporation is created by the laws
of a state, the legal presumption is that its members are citizens of
that state, and that a suit by or against a corporation in its corporate
name, must be conclusively presumed to be a suit by or against citi-
zens of the state which created the corporate body."
Corporations, under the treaties between the United States and
Great Britain of 1783 and 1794, are entitled, in respect of security
for their property, to the same rights as natural persons.
Moore's Digest, vol. 3, p. 800, citing Society for the Propagation of
the Gospel v. New Haven, 8 Wheat. 464.
The treaty of Guadalupe Hidalgo between the United States and
Mexico makes no distinction, in the protection it provides, between
the property of individuals and the property held by towns under
the Mexican Government.
Moore's Digest, vol. 3, pp. 800, 801, citing Townsend v. Greeley, 5
Wall. 326.
The rule that a suit by or against a corporation in its corporate
name in a court of the United States is conclusively presumed to be
a suit by or against citizens of the Staté creating the corporatior
does not apply to a limited partnership association organized unde
NATIONALITY OF CORPORATIONS.
111
the Pennsylvania statute of June 2, 1874, entitled "An act authoriz-
ing the formation of partnership associations in which the capital
subscribed shall alone be responsible for the debts of the association
except under certain circumstances.”
Moore's Digest, vol. 3, p. 801, citing Great Southern Fire Proof Hotel
Co. v. Jones (1900), 177 U. S. 449.
“ There is an undisputable legal presumption that a State corpora-
tion, when sued or suing in a circuit court of the United States, is
composed of citizens of the State which created it. ... That doc-
trine began, as we have seen, in the assumption that State corpora-
tions were composed of citizens of the State which created them; but
such assumption was one of fact, and was the subject of allegation
and traverse, and thus the jurisdiction of the Federal courts might be
defeated. Then, after a long contest in this court, it was settled that
the presumption of citizenship is one of law, not to be defeated by
allegation or evidence to the contrary. There we are content to
leave it."
Moore's Digest, vol. 3, p. 801, citing, St. Louis & San Francisco Railway
Co. v. James (1896), 161 U. S. 545, 562, 563.
The rule that the stockholders of a corporation are, for purposes.
of Federal jurisdiction, conclusively presumed to be citizens of the
State under whose laws the corporation was created, was questioned
or opposed in Strawbridge v. Curtiss, 3 Cranch, 267; Bank of the
United States v. Deveaux, 5 Cranch, 84; Commercial and Railroad
Bank of Vicksburg v. Slocomb, 14 Pet. 60. See, also, Hope Ins.
Co. v. Boardman, 5 Cranch, 57. These cases were reviewed and con-
trolled in 1844 in the case of Louisville Railroad Co. v. Letson, 2
How. 497.
See, also, Muller v. Dows, 94 U. S. 444; National Steamship Co.
v. Dryer, 1 Sup. C. R. 58; Ferry v. Imperial Fire Ins. Co., 9 West.
Jur. 551.
Moore's Digest, vol. 3, p. 801.
A corporation under the laws of the State of Minnesota brought
suit against the United States in the Court of Claims, under the act
of March 3, 1891, 26 Stat. 851, in relation to the payment of Indian
depredation claims, for the value of certain horses and harness taken
or destroyed by Sioux Indians. The act authorized the payment only.
of “claims for property of citizens of the United States.” The
Court of Claims found as a conclusion of law that the claimant,
as a Minnesota corporation, must be presumed to be a citizen of the
United States for the purposes of the action. The United States
appealed. The decision of the Court of Claims was affirmed.
112
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
as
Mr. Justice White, delivering the opinion of the court, observed
that Congress had frequently in its legislation, as also had the treaty
making power, used the words “ citizens of the United States ?
embracing corporations created under State laws. This was the case
in Revised Statutes, secs. 2319 and 2321, relating to the purchase of
mineral deposits in public lands, and also under the French Spolia-
tions Act of January 20, 1885, 22 Stat. 283. In these cases Congress
had entered upon no inquiry as to whether the stockholders were
composed in whole or in part of any but citizens of the United
States. So, in various treaties of the United States, the 'phrase
s citizens of the United States" had been used as including corpora-
tions, companies, and private individuals. By the act of March 3,
1891, the United States had designed to pay for injuries committed
by the Indians, its wards. In order to make such restitution the
word“ citizens” would require a construction embracing Federal and
State corporations, since redress must be denied unless the corpora-
tion holding legal title to property might bring a claim for damages,
the stockholders being legally incompetent to present such a claim.
It had been argued that, if corporations were embraced in the terms
of the act, an alien who was a corporator might be benefited. But
the argument of inconvenience on this ground was overwhelmed by
the preponderance of inconvenience on the other side, for, while the
alien corporator might be an exception, the corporator who was a
citizen both of the State and of the United States was the rule.
Moore's Digest, vol. 3, pp. 801, 802, citing United States v. North-
western Express Co., 164 U. S. 686.
Henry Chauncey, a citizen of the United States, and two other
persons, also such citizens, made a claim against the Chilean Govern-
ment as surviving members of the firm of Alsop & Co. The claim
was based on alleged interference by the Chilean Government with
certain property or property rights, which were transferred in 1875
to that firm, and which, the firm having gone into liquidation, were
embraced in a contract of settlement in 1876 between the liquidating
partner of the firm and the Government of Bolivia. Subsequently,
on the death of the partner in question, Mr. Chauncey became the
liquidator of the firm, and as such liquidator he appeared as the
firm's representative in presenting the claim. It appeared that the
firm was formed in 1870 under the laws of Chile, with its domicil at
Valparaiso, and that it constituted under those laws a society of part-
nership en comandité, which constitutes under the law of Chile,
(which is based on the civil law), a juridical person or entry distinct
from its individual members. On this ground it was held that the
firm was to be considered for international purposes as a citizen
NATIONALITY OF CORPORATIONS.
113
of Chile, and was therefore incapable of prosecuting through its rep-
resentative a claim against Chile as a citizen of the United States
before an international commission.
Moore's Digest, vol. 3, pp. 802, 803, citing Henry Chauncey v. Chile,
No. 3, United States and Chilean Claims Commission (1901), citing
Code of Chile, tit. 28, art. 2053; Calvo, Droit International II. 227,
399; Smith v. McMicken, 3 La. Ann. 322; Liverpool Nav. Co. v.
Agar, 14 Fed. Rep. 615; Wharton's Int. Law Dig. II, 528; Field's
Int. Code, art. 545; Müller v. Dows, 94 U. S. 445; Code of Belgiuni,
art. 3; Lyon-Caen and Renault, Droit Commercial, II, 241–243; the
Cerruti Case, as presented in the Italian Green Book, March 13, 1900,
and in Calvo, Droit International, III, 426.
A British railway corporation, considering itself aggrieved by the
action of the British colonial authorities, addressed a memorial to
the British Government. The Government of the United States was
requested, in behalf of an American corporation, which was said to
own all the shares of the British corporation, to support the latter's
memorial. The United States answered that the railway company,
in whose name the memorial was presented, being a British corpora-
tion, could not call upon the United States to intervene in its behalf
with the British authorities, but that there was “a more substantial
reason for the refusal than that of the distinction between a corpora-
tion and its shareholders. It is an established principle that where a
State creates a corporation and confers upon it franchise and obliga-
tions of an important public character, such as the operating a
railroad, the company entrusted with these privileges and duties is
not allowed, without the consent of the Government from which it
derives its existence, to transfer them to others. This general prin-
ciple may be to some extent evaded in the case of an incorporated
company by a transfer, not of the property itself, but of the shares of
stock in the corporation. But the mere transfer of shares between
individuals does not affect the complete subjection of the corporation
itself to the Government which created it. That Government still
retains all the powers of regulation and legislation in respect to the
corporation, its rights, privileges and franchises, which it would have
had, had there been no transfer of shares. Any attempt at interven-
tion by the Government of persons holding a portion or even the
whole of the shares of a corporation, with the Government which
created it and within whose limits its operations are conducted,
would be an infringement of the principle above referred to."
Moore's Digest, vol. 3, p. 803, citing Mr. Uhl, Act. Sec. of State, to Mr.
Wesson, April 29, 1895, 201 MS. Dom. Let. 696; Canada Southern
Railway v. Gebhard, 109 U. S. 527.
114
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A corporation organized in Great Britain, having its principal
place of business in that country, is not a subject of that country,
within the meaning of a treaty giving subjects of that country the
right to do business in any of the States of the United States on the
same terms as natives.
Moore's Digest, vol. 3, pp. 803, 804, citing Scottish Union & National
Ins. Co. of Edinburgh, Scotland, and London, England 4. Herriott,
109 Iowa, 606, 80 N. W. 605.
The Board of Harbor Works of Ponce, Porto Rico, a Spanish cor-
poration, became “as between the United States and other govern-
ments, an American citizen,” by virtue of the treaty of peace, by
which Porto Rico was annexed to the United States.
Moore's Digest, vol. III, p. 804, Mr. Hay, Sec. of State to Sec. of War,
March 27, 1900, 244 MS. Dom. Let. 41.
By “ the law of comity among nations, a corporation created by
one sovereign is permitted to make contracts in another,” and to sue
and be sued in its courts; and this rule prevails in the United States
'and between the States thereof.
Bank of Augusta v. Earle, 13 Pet. 519; Canada Southern R. Co. v. Gebhard,
109 U. S. 527; Société Foncière v. Milliken, 135 U. S. 304; Wilson v. Martin-
Wilson Fire Alarm Co., 149 Mass. 24; Lancaster V. A I. Co., 140 N. Y. 576;
Watson r. Richmond & D. R. Co., 91 Ga. 222; A. T. & S. F. R. Co. v. Fletcher,
35 Kan. 236; Taylor 1. Trust Co., 71 Miss. 694; Missouri Lead M. & S. Co., V.
Reinhard, 114 Mo. 218; Cone Co. v. Poole, 41 S. C. 70; Lytle v. Custead, 4. Tex.
Civ. App. 490; Humphreys v. Newport News & M. V. Co., 33 W. Va. 135.
The rule that the capacity of private individuals, British subjects,
to hold lands or other property in this country was not affected by
the Revolution, includes in its protection corporations, even such as
consist of British subjects, and exist in their corporate capacity in
England.
Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464.
See, as to effect of the war of 1812 on prior treaties in this respect, Mr. Bay-
ard, Sec. of State, to Mr. Lehman, June 23. 1885, 156 MS. Dom. Let. 80.
The right to exclude foreign corporations, or to admit them on
prescribed terms and conditions, is subject, in the case of the States
of the American Union, to the qualification that the limitation im-
posed on the right to contract does not invade the exclusive power
of Congress to regulate commerce.
Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 734; Horn Silver Mining Co. v.
New York, 143 U. S. 305.,
It should be observed that, while it is generally laid down that foreign cor-
porations may be altogether excluded, or may be admitted on such terms and
conditions as a State may think proper to impose (Paul v. Virginia, 8 Wall, 168,
181), the rule must be considered as varying in its force and application with
NAȚIONALITY OF CORPORATIONS.
115
the character of the corporation. An attempt in these days to enforce a general
exclusion against ordinary trading and manufacturing corporations, to the
extent of prohibiting them from making contracts, probably would be found
to involve something more than an ordinary question of comity."
See, as to the capacity of corporations, Dicey, Conflict of Laws, 485_489.
In a note of the Italian minister for foreign affairs to the Ameri-
can embassy at Rome in July, 1899, it was stated that two opinions
prevail in Italy as to the status and capacity of foreign corporations,
some writers holding that civil “recognition” of them is necessary
to enable them to exercise their powers in Italy, while others hold
that a new “recognition " is useless and even contrary to the prin-
ciples of international law accepted in Italian legislation. The min-
istry of grace and justice had followed the latter opinion, but some
of the courts had lately taken the former view. The case had not yet
been passed upon by the court of cassation. It was stated that if that
court should take the view that a recognition was necessary, the min-
istry of grace and justice would consider whether in the pending case
a " formal and explicit recognition " should be granted to the [cor-
poration] in question. The case referred to was that of the Mission-
ary Society of the Methodist Episcopal Church, a New York cor-
poration having an office in Rome. It was seeking to obtain posses-
sion of a legacy left to its presiding elder by an Italian subject for
the purpose of building an evangelical school in San Marzano.
Moore's Digest, vol. IV, p. 19; For Rel. 1899, 408-411.
܀
It is well settled that a government may intervene in behalf of a
company incorporated under its laws, or under the laws of a con-
stituent state or province. In such case the act of incorporation is
considered as clothing the artificial person thereby created with the
nationality of its creator, without regard to the citizenship of the
individuals by whom the securities of the company may be owned.
Hence we find in general claims conventions that the submission of
settlement uniformly embraces “ all claims on the part of corpora-
tions, companies, or private individuals, citizens of the United
States," or of some other government, as the case may be. In other
words, the corporation is recognized as having, for purposes of diplo-
matic protection, the citizenship of the country in which it is created.
The Government of the United States having in 1886 protested
against the suspension by military order of the Panama Star and
Herald, a newspaper published by an American corporation, and
having in 1887 presented in behalf of the corporation a claim for
damages against the Colombian Government, Señor Holguin, Colom-
bian minister for foreign affairs, raised in 1896, the claim being still
unsettled, the defense that there had ceased to be anyone possessing
legal authority to represent it as an American claim, and in 1898 the
116
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
further defense that the person then owning the newspaper had made
a declaration before the United States consul at Panama that neither
he nor the Star and Herald had any valid claim against Colombia,
and that he renounced the claim that had been made. It was alleged
by Señor Holguin, in this relation, that the Star and Herald Pub-
lishing Company, a corporation formed in 1884, under the laws of
the State of New York, not having paid taxes to that State since
1890 or 1891, had lost all right to the protection of the United States;
that the president of the company, Mr. Spies, a commission merchant
in New York, failed in 1893 and committed suicide; that the vice-
president of the company, Mr. Boyd, was a “native and resident of
Panama, consequently a citizen of Colombia,” as was also his brother,
who was manager of the company on the Isthmus till 1892; that in
June, 1893, the enterprise having failed, all its goods in Panama, as
well as the right to publish the newspaper, were sold by order of
court, and were bought by Mr. Gabriel Duque, the present owner;
and that the power of attorney given by Mr. Spies to Mr. L. Myers,
a lawyer of Philadelphia, to represent in the United States the
claim against the Colombian Government, had by Mr. Spies's death.
become null and void.
Of this defense Mr. Olney, Secretary of State, in an instruction to
Mr. Sleeper, minister to Colombia, February 24, 1897, said:
“After almost eleven years' delay, the idea is suggested by Minister Holguin
that the Star and Herald was not an American enterprise nor entitled to
remedy as such for the wrongs inflicted upon it. ... This new evasion seems
to be an effort to further trifle with the subject.
" Colombia was originally officially notified by instruction of this Department
of May 15, 1886, a copy of which was delivered to that Government by Mr.
Jacobs, and again on January 31, 1890, through its minister at Washington,
that the Panama Star and Herald was a company of American citizens, incor-
porated under the laws of the State of New York, and as such entitled to our
protection. It was scarcely necessary to give this notice, as the charter was
recorded both at Panama and Bogota, and the Colombian Government had
accorded it the privileges authorized by law to such foreign corporations for
the term of fifty years. Still further, the Colombian Congress, by resolution,
liad publicly thanked the Star and Herald as an American paper for its friendly
conduct. President Nuñez even exempted it on September 15, 1885, from an
order applying to other newspapers in the Republic, principally as a demon-
stration of appreciation of the United States.' Throughout the diplomatic cor-
respondence in this claim until now the American nationality of the owners
of the Star and Herald was admitted by Colombia, the only defense set up
being that under our treaty the consequences of what Minister Hurtado
termed the unjust suspension of this paper should rest and be allowed 'to
fall heavily on its responsible author.' The Star and Herald corpora-
tion is a legal 'person' in contemplation of law, and is not to be deprived of
its just compensation and damages by technicalities unknown to the law."
In November, 1898, a bill passed the Colombian Congress, against
“strong opposition," authorizing the Government to pay the claim.
NATIONALITY OF CORPORATIONS.
117
It was definitely adjusted in January, 1899, by an arrangement for
the payment of $30,000 U. S. gold ($91,000 being the amount orig-
inally demanded), Senor Marquez, the minister for foreign affairs,
having previously filed a protest against the demand, embracing the
arguments previously employed against it.
Mr. Olney, Sec. of State, to Mr. Sleeper, min. to Colombia, Feb. 24, 1897, For.
Rel. 1899, 228.
See, also, For. Rel. 1899, 219, 230_231, 228, 239-241.
In a letter to Mr. Blaine of May 17, 1889, Mr. Barlow, of counsel
for the Panama Railroad Company, in answer to an inquiry made at
a recent interview in Washington, enclosed a letter of Messrs. Cou-
dert Brothers of May 16, 1889, in relation to the ownership of the
stock of the Panama Railroad Company. The Messrs. Coudert say
in their letter that although the Panama Canal Company had ac-
quired by purchase a large amount of the stock of the Panama Rail-
road Company, a “material portion” of it had always "remained
in American hands;" that the Company was incorporated under the
laws of New York; that an appeal for protection to the French Gov-
ernment would undoubtedly be met with that conclusive objection;
that if an appeal for protection to Washington was unheeded the
company would become an outlaw; that if the nationality of stock-
holders was to be taken into account an investor in an American
company would have no security, since without the will or assent of
the company, the shares might be transferred by purchase in open
market the next day to foreigners. Mr. Barlow, in the same relation
referred to four railroad corporations—the New York Central, the
Erie, the Pennsylvania, and the Reading--and said it would not
infrequently be found, as he was informed, that a large majority of
the stock of each of those companies was for the time being owned
abroad.
This correspondence is printed in S. Doc. 264, 57 Cong. 1 sess. 232–233.
Moore's Digest, vol. VI, pp. 641, et. seq.
Corporation, during war.
There is no legal difference, as to a plea of alien enemy, between a
corporation and an individual.
Society, etc., v. Wheeler, 2 Gall. 105.
See, also, The Danckebaar Africaan, 1 Rob. 107; Martine v. Int. Life Ins.
Soc., 53 N. Y. 339.
See Nigel Gold Mining Co., Lim., v. Hoade (1901), 17 T. L. R. 711, and the
comments thereon in 15 Harvard Law Review, 237.
More's Digest, vol. VII, p. 434.
St. Louis & San Francisco Railway v. James, 161 U. S. 545.-Re-
viewing cases beginning with Bank v. Deveaux, the court said: “It
must be regarded, to begin with, as finally settled, by repeated deci-
118
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
sions of this court, that, for the purpose of jurisdiction in the Federal
courts, a state corporation is deemed to be indisputably composed of
citizens of such State."
Nigel Gold Mining Co. v. Hoade, 2 W. p. 849.-The Court said:
The plaintiff company were the owners of a gold mine in the
Transvaal, and on October 17, 1899, after the commencement of the
war, the agents of the Transvaal Government seized and carried
away from the mine 780 ounces of amalgam, and in February, 1900,
there was a further seizure by agents of the Government of 106
cunces of amalgam. This latter quantity had not been entered in the
amalgam register until some days after the seizure. In the year
1888 the plaintiff company had been registered in Natal as a joint
stock company. Subsequently, the company had received a sup-
plemental incorporation in the Transvaal. The object of this pro-,
ceeding was to enable the company to sue and be sued in the Trans-
vaal in its corporate name, and to obviate the difficulty under
Transvaal law of representing a foreign company under power of
attorney. I am satisfied from the evidence given in the case that
this additional incorporation was supplemental and ancillary only,
and did not alter the status of the Natal company. A branch office
had been opened at Johannesburg, but it was only used for transfer of
shares, and transacted no other business. The only property of the
company was the gold mine in the Transvaal. There was a resident
manager and secretary, and the working of the mine was controlled
by a committee of directors, who went up from Natal for the purpose
every month."
“ The main contention of the defendant's counsel was that the
subject-matter of insurance was enemies' property, and that after a
declaration of war the policy had become ineffective. It was pointed
out that the company had been carrying on their business within the
territories of the South African Republic, and had acquired a com-
mercial domicile in the Transvaal, and that the products of their
mine were Transvaal and not British property, and it was urged
that, from the time when war was declared, the property was stamped
with a hostile character, and on the high seas would be subject to
capture and condemnation as lawful prize. In suport of this con-
tention recourse was had to the authority of cases decided in the
English and American Prize Courts in the early part of the last
century. There can be little doubt that these cases would not be
followed now, and even when those decisions were pronounced their
authority was rejected by eminent lawyers. (See The “Venus
& Cranch, 253, at p. 279.) The sounder opinion would seem to be
that the subject of one country, surprised by a declaration of war
in the country where he has a commercial domicile, ought to have
>
NATIONALITY OF CORPORATIONS.
119
t
time allowed him to free himself from his commercial engagements
and effect a removal of his property. The conflicting opinions upon
this subject are discussed with great ability in Duer on Marine In-
surance, vol. i, lecture 5. In this case there was no indication of any
intention on the part of the Natal company to continue their busi-
ness in the Transvaal after war had been declared. There was no
evidence of any intention on the part of the company to continue
their mining operations while the war continued. No authority was
cited to show that the supposed rule relied upon by the defendant
had ever been recognised by or adopted in insurance law. I am sat-
isfied that for the purposes of this case the gold products in question
are not to be regarded at the time of the seizure as enemies' property
merely by reason of the commercial domicile of the company when
war was declared.
But the same result was sought to be reached in a different way.
It was said that the plaintiff company had a twofold character. It
was a British company and a Transvaal company; it was amphi-
bious, and was at once friendly and hostile. It was urged that the
goods should be deemed to be Transvaal goods, and that the company
should be deemed to be a Transvaal company, and that to indemnify
the plaintiff should be deemed to be an addition to the resources of
the Transvaal Government, and therefore to be against public policy.
But this argument seems to me to offer a series of fictions in lieu of
the plain facts. I am of opinion that the gold products in question
were British goods, and were seized by a hostile force, and that the
loss is covered by the policy. My judgment is therefore for the
plaintiff company."
Trotter, pp. 134-136.
Janson v. Dreifontein, Consolidated Mines, Limited.–1902 Law
Reports. House of Lords and Privy Council Appeals, 484.—The re-
spondents, a company registered under the law of the South African
Republic, in August, 1899, insured, with the appellant and other un-
derwriters, gold against (inter alia) “arrests, restraints, and de-
tainments of all kings, princes, and people," during its transit
from the Gold Mines near Johannesburg in the Transvaal to the
United Kingdom. On October 2, 1899, the gold was during its
transit seized on the frontier by order of the Government of the
South African Republic. On October 11 at 5 p. m. a state of war
began between the British Government and the Government of the
Republic. At the time of the seizure war was admitted to be
imminent.
The respondent company had a London office, but its head office
was at Johannesburg. Most of its shareholders were resident out-
side the Republic and were not subjects thereof.
120
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The respondent company having brought an action against the
appellant upon the policy, it was agreed between the parties that the
action should be treated as if brought at the conclusion of the war,
and that the Blue Book might be referred to for evidence as to the
facts. The action was tried without a jury before Mathew, J., who
held that the appellant was liable. This decision was affirmed by
the Court of Appeals (A. L. Smith M. R. and Romer L. J., Vaughan
Williams L. J. dissenting).?
Lord Macnaghten said: “My Lords, I assume that the corpora-
tion, which was plaintiff in the action and is now respondent here, was
to all intents and purposes in the position of a natural-born subject
of the late South African Republic. I do not think it can be entitled
to any exceptional favour or to any peculiar indulgence by reason
of the fact, if it be a fact, that the bulk of its shareholders were of
European nationality. If all its members had been subjects of the
British Crown, the corporation itself would have been none the less
a foreign corporation and none the less in regard to this country
an alien.
Lord Davey said: “I think it must be taken that the respondent
company was technically an alien, and became, on the breaking out
of hostilities between this country and the South African Republic,
an alien enemy. I also assume, in accordance with the decision in
Aubert v. Gray, that the loss occasioned by the embargo placed on
the goods by the assured's own Government might, in ordinary cir-
cumstances, be recovered on the policy. *
“My Lords, there are three rules which are established in our com-
mon law. The first is that the King's subjects cannot trade with an
alien enemy, i. e., a person owing allegiance to a Government at war
with the King, without the King's license. Every contract made in
violation of this principle is void, and goods which are the subject
of such a contract are liable to confiscation. The second principle
is a corollary from the first, but is also rested on distinct grounds of
public policy. It is that no action can be maintained against an in-
surer of an enemy's goods or ships against capture by the British
Government. One of the most effectual instruments of war is the
crippling of the enemy's commerce, and to permit such an insurance
would be to relieve enemies from the loss they incur by the action
of British arms, and would, therefore, be detrimental to the interests
of the insurer's own country. The principle equally applies where
the insurance is made previously to the commencement of hostilities;
and was, therefore, legal in its inception, and whether the person
claiming on the policy to be a neutral or even a British subject if
the insurance be effected on behalf of an alien enemy. The third
**
1 [1900] 2 Q. B. 339.
2.[1901] 2 K. B. 419.
33 B. & S. 163.
NATIONALITY OF CORPORATIONS.
121
rulé is that, if a loss has taken place before the commencement of
hostilities, the right of action on a policy of insurance by which the
goods lost were insured is suspended during the continuance of war
and revives on the restoration of peace.”
Lord Brampton said: “The plaintiff is a company incorporated
under the laws of the South African Republic for the purpose of
working gold mines therein. The majority of its share holders are
subjects of the United Kingdom. The company has an office and a
committee of management in England, and it was a custom of the
company to transmit to this country gold bullion for sale and dis-
tribution of the profits amongst its shareholders. The company
clearly must be treated as a subject of the Republic, notwithstanding
the nationality of its shareholders."
Lord Lindley said: “Before considering the legality or illegality
of the policy, it is desirable to consider the legal position of the com-
pany assured by it. The company was incorporated and registered
according to the laws of the Transvaal, and it carried on business
there. It had gold mines there and extracted gold from them, and
sent such gold to England or Europe for sale and division of profits
amongst its shareholders. It had also a London office and London
committee of management. For all purposes material for the deter-
mination of the present appeal the company must, in my opinion,
be regarded as a company resident and carrying on business in the
Transvaal although not exclusively there. It was subject to the laws
of that country. When war broke out the company became an alien
enemy of this country: see the American case of Society for the Prop-
agation of the Gospel v. Wheeler. (1) If it becomes material to
attribute nationality to the company it would, in my opinion, be cor-
rect to say that the company was a Transvaal Company and a sub-
ject of the Transvaal Government, although almost all its share-
holders were foreigners resident elsewhere and subjects of other coun-
tries. But when considering questions arising with an alien enemy,
it is not the nationality of a person, but his place of business during
war that is important. An Englishman carrying on business in an
enemy's country is treated as an alien enemy in considering the
validity or invalidity of his commercial contracts: McConnell v.
Hector.1 Again, the subject of a State at war with this country, but
who is carrying on business here or in a foreign neutral country, is
not treated as an alien enemy; the validity of his contracts does not
depend on his nationality, nor even on what is his real domicil, but
on the place or places in which he carries on his business or busi-
nesses: Wells v. Williams. As observed by Sir William Scott in the
13 B. & P. 113; 6 R. R. 724.
2 2 Gallison, 105. (9 W. 3) 1 Ld. Raym. 282; 1 Salk, !
110678-199
122
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Yonge Klassina,i ' a man may have mercantile concerns in two coun-
tries, and if he acts as a merchant of both he must be liable to be con-
sidered as a subject of both with regard to the transactions originat-
ing, respectively, in those countries. That he has no fixed counting-
house in the enemy's country will not be decisive.""
See also The Portland, 3 C. Rob. 41.
De Beers Consolidated Mines, Limited, v. Howe, A. C. 455, 458.-
Lord Loreburn said: “I cannot adopt Mr. Cohen's contention. In
applying the conception of residence to a company, we ought, I
think, to proceed as nearly as we can upon the analogy of an indi-
vidual. A company cannot eat or sleep, but it can keep house and
do business. We ought, therefore, to see where it really keeps house
and does business. An individual may be of foreign nationality, and
yet reside in the United Kingdom. So may a company. Otherwise
it might have its chief seat of management and its centre of trading
in England under the protection of English law, and yet escape the
appropriate taxation by the simple expedient of being registered
abroad and distributing its dividends abroad. The decision of
Kelly C. B. and Huddleston B. in the Calcutta Jute Mills v. Nichol-
son and the Cesena Sulphur Co. v. Nicholson now thirty years ago
involved the principle that a company resides for purposes of in-
come tax where its real business is carried on. Those decisions have been
acted upon ever since. I regard that as the true rule, and the real
business is carried on where the central management and control
actually abides."
[For citations relative to the Nationality of Corporations later in
date than August 1, 1914, see the Appendix to this volume.]
1 (1804) 5 C. Rob. 302-3.
ENEMY PERSONS IN BELLIGERENT TERRITORY.
The citizens and subjects of all other occupations [than mer-
chants] who may be established in the territories or dominions of
the United States, and of the Empire of Brazil, shall be respected
and maintained in the full enjoyment of their personal liberty and
property, unless their particular conduct shall cause them to forfeit
this protection, which, in consideration of humanity, the contracting
parties engage to give them.
Treaty of Amity, Commerce, and Navigation of 1828, between the
United States and Brazil, Article XXV.
And if a war shall break out between the parties, nine months
shall be granted to all the subjects of both parties to dispose of their
effects and retire with their property. And it is further declared
that whatever indulgence, in trade or otherwise, shall be granted to
any of the Christian Powers, the citizens of the United States shall
be equally entitled to them.
Treaty of Peace and Friendship of 1836 between the United States
and Morocco, Article XXIV.
The citizens of all other occupations [than merchants] who may
be established in the territories or dominions of the United States
or of New Granada, shall be respected and maintained in the full
enjoyment of their personal liberty and property, unless their par-
ticular conduct shall cause them to forfeit this protection, which,
in consideration of humanity, the contracting parties engage to give
them.
Treaty of Peace, Amity, Navigation, and Commerce of 1846 between
the United States and Colombia, Article XXVII.
Upon the entrance of the armies of either nation into the terri-
tories of the other, women and children, ecclesiastics, scholars of
every faculty, cultivators of the earth, merchants, artisans, manu-
facturers, and fishermen, unarmed and inhabiting unfortified towns,
villages, or places, and in general all persons whose occupations are
for the common subsistence and benefit of mankind, shall be
allowed to continue their respective employments, unmolested in
their persons.
Treaty of Peace, Friendship, Limits and Settlement of 1848 between
the United States and Mexico, Article XXII.
123
124
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
*
and even in the event of a rupture, all such citizens
of either of the two high contracting parties who are established in
any of the territories of the other, in the exercise of any trade or
special employment, shall have the privilege of remaining and of
continuing such trade and employment therein without any manner
of interruption, in the full enjoyment of their liberty and property,
as long as they behave peaceably, and commit no offense against
the laws; and their goods and effects, of whatever description they
may be, whether in their own custody or intrusted to individuals
or to the State, shall not be liable to seizure or sequestration, nor
to any other charges or demands than those which may be made
upon the like effects or property belonging to the native citizens of
the country in which such citizens may reside. In the same case,
debts between individuals, property in public funds, and shares of
companies, shall never be confiscated, sequestered nor detained.
Treaty of Friendship, Commerce, and Navigation of 1851 between the
United States and Costa Rica, Article XI.
The citizens of all other occupations [than merchants], who may
be established in the territories of the United States and the Re-
public of Bolivia, shall be respected and maintained in the full
enjoyment of their personal liberty and property, unless their par-
ticular conduct shall cause them to forfeit this protection, which,
in consideration of humanity, the contracting parties engage to give
them.
Treaty of Peace, Friendship, Commerce, and Navigation of 1858 be-
tween the United States and Bolivia, Article XXVIII.
And even in the event of a rupture, all such citizens of either of
the two high contracting parties who are established in any of the
territories of the other, in the exercise of any trade or special em-
ployment, shall have the privilege of remaining, and of continuing
such trade and employment therein without any manner of inter-
ruption, in the full enjoyment of their liberty and property as long
as they behave peaceably, and commit no offense against the laws;
and their goods and effects, of whatever description they may be,
whether in their own custody or intrusted to individuals or to the
State, shall not be liable to seizure or sequestration, nor to any other
charges or demands than those which may be made upon the like
effects or property belonging to the native citizens of the country in
which such citizens may reside.
Treaty of Friendship, Commerce, and Navigation of 1864 between
the United States and Honduras, Article XI.
And [if war shall break out between the two contracting parties]
all women and children, scholars of every faculty, cultivators of the
ENEMY PERSONS IN BELLIGERENT TERRITORY.
125
earth, artisans, mechanics, manufacturers, and fishermen, unarmed
and inhabiting the unfortified towns, villages, or places, and, in
general, all others whose occupations are for the common subsistence
and benefit of mankind, shall be allowed to continue their respective
employments, and shall not be molested in their persons.
Treaty of Commerce and Navigation of 1871 between the United
States and Italy, Article XXI.
[For the treaty provisions between the United States and other
Powers respecting the treatment of merchants and their property in
the event of war between the contracting parties, see the citations,
Supra, under the heading “Enemy property in belligerent ter-
ritory.”]
Entrance of aliens.
ARTICLE 8. In time of war, internal dissension, or epidemic, the
State shall have the right of temporarily restricting or prohibiting
the entrance of aliens.
Institute (1892), p. 105.
Expulsion of aliens.
ARTICLE 2. Except in cases of extreme necessity, such as war or
serious disturbances, a distinction should be made between ordinary
expulsion, applying to specific individuals, and extraordinary ex-
pulsion, applying to classes of individuals.
ARTICLE 3. Expulsion under pressure of necessity shall be only
temporary. It shall not exceed the duration of the war or a period
determined upon in advance, at the expiration of which it may be
at once converted into ordinary or extraordinary expulsion.
ARTICLE 4. Extraordinary expulsion shall be accomplished by a
special law or at least by an ordinance previously promulgated. The
general ordinance, before being carried out, should be made public
a reasonable time beforehand.
ARTICLE 5. In ordinary expulsion, those individuals who are resi-
dents or who have a commercial establishment must, from the stand-
point of guaranties, be distinguished from those who have neither.
ARTICLE 6. A decision decreeing ordinary expulsion and stating
the provisions on which it is based must be made known to the party
interested before being put into execution.
Institute (1888) pp. 89, 90.
1
Various kinds of expulsion.
ARTICLE 24. Temporary extraordinary (or en masse) expulsion
applies to classes of individuals, as the result of war or serious dis-
turbances arising in the country; it is effective only during the war or
for a fixed period.
126
SELECTED TOPICS .CONNECTED WITH LAWS OF WARFARE.
ARTICLE 25. Ordinary expulsion is purely individual.
ARTICLE 26. Definitive extraordinary expulsion requires a special
law, or at least a special decree of the sovereign power. The law or
the decree, before being put into execution, shall be published a
reasonable time in advance.
ARTICLE 27. Temporary extraordinary expulsion may, at the end
of the war or of the fixed period, be converted into ordinary expul-
sion or definitive extraordinary expulsion. The period originally de-
termined upon may be extended once.
Institute (1892), p. 107.
ARTICLE 28. The following may be expelled :
*
10. Aliens, who, in time of war or when war is impending, en-
danger the safety of the state by their conduct.
*
ARTICLE 36. In the case mentioned in No. 10 of Article 28, there
shall be no appeal.
Institute (1892), pp. 108-110.
The sovereign declaring war can neither detain the persons nor the
property of those subjects of the enemy who are within his do-
minions at the time of the declaration. They came into his country
under the public faith. By permitting them to enter and reside in
his territories, he tacitly promised them full liberty and security for
their return. He is therefore bound to allow them a reasonable time
for withdrawing their effects; and if they stay beyond the term pre-
scribed, he has a right to treat them as enemies--as unarmed enemies,
however. But if they are detained by an insurmountable impedi-
ment, as by sickness, he must necessarily and for the same reasons,
grant them a sufficient extension of the term. At present, so far
from being wanting in this duty, sovereigns carry their attention to
humanity still farther, so that foreigners, who are subjects of the
state against which war is declared, are very frequently allowed full
time for the settlement of their affairs. This is observed in a par-
ticular manner with regard to merchants; and the case is moreover
carefully provided for in commercial treaties. The king of England
has done more than this. In his last declaration of war against
France, he ordained that all French subjects who were in his domin-
ions, should be at liberty to remain, and be perfectly secure in their
persons and effects, “provided they demeaned themselves properly."
Vattel, p. 317.
When hostilities have begun, the person of the enemy is, strictly
speaking, liable to seizure, and his property to confiscation. The
Romans exercised this summum jus, in the harshest manner, upon
the
ENEMY PERSONS IN BELLIGERENT TERRITORY.
127
persons of those who, at the breaking out of the War, happened to be
in their territory; but this practice has happily become obsolete.
Louis XIV, though his subjects produced excellent works, during
his reign upon International law, was not himself the most scrupu-
lous observer of the precepts of that science ;-yet even he, by an
Edict, in January, 1666, in which he declared War against and inter-
dicted all commerce with England, declared also, by a subsequent
Edict, that his first Edict affected only those English who should be
found thereafter on high seas, or who should act the part of an
enemy on the French territory, but not against those private in-
dividuals who had established their domicile in France; and that
with respect to those enemies who were residing in France, but had
not obtained the jus subditorum they were to depart, whithersoever
they listed, before the lapse of three months.
This permission, however, Bynkershoek says, is to be ascribed
solely to generosity and kindness (humanitati) because, according to
this author, the enemy has at all times, and under all circumstances,
an absolute power of life and death over his enemy-an opinion
which has already been combated in a former chapter of this volume.
Bynkershoek indeed admits that, even in his time, there were so
inany Treaties in which a reasonable time for withdrawal was made
a matter of stipulation, " si subito bellum exarsisset” (to borrow the
language of the Digest), that this summum juş was very rarely, if
ever, put in force against those who were innocently abiding in the
country of the enemy. Since the age of Bynkershoek, liberal pro-
visions of this kind have been constantly inserted in Treaties be-
tween States, both of the New and of the Old World; they have
become, Mr. Chancellor Kent observes, “an established formula in
commercial Treaties."
Eminent jurists have considered these stipulations to be rather
affirmations of the jus commune of nations, than as introductory of
any novel principle; and, among these jurists may be mentioned
Grotius, Emerigon and Vattel. They argue that the foreigners
entered the country under the sanction of public faith; that the
Government which permitted them to enter did, by so doing, tacitly
contract that they should be protected during their sojourn, and not
prevented, unless, by some personal act of misconduct, from their
return. They ought, therefore, to be allowed a reasonable time to
retire with their moveable property, and after that time has elapsed,
unless, indeed, their detention has been caused by illness, or some
invincible necessity, to be treated as disarmed enemies. This was
the principle which the English Government, during the late Civil
War in the United States, maintained to be correct, and was gen-
erally admitted by the U. S. Government.
Phillimore, vol. 3, pp. 128–130.
128
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
When hostilities have commenced, the first objects that naturally
present themselves for detention and capture are the persons and
property of the enemy found within the territory on the breaking
out of the war. According to strict authority, a state has a right to
deal as an enemy with persons and property so found within its
power, and to confiscate the property, and detain the persons as
prisoners of war.
Kent, vol. I, p. 68.
Right of detention.
One of the immediate consequences of the position in which the
citizens and subjects of belligerent states are placed by the declara-
tion of war, is, that all the subjects of one of the hostile powers,
within the territory of the other, are liable to be seized and retained
as prisoners of war. But this extreme right, founded on the positive
law of nations, has been stripped of much of its rigor in modern
warfare, by the milder rules resulting from the usage of nations, the
stipulations of treaties, and the municipal laws and ordinances of
particular states. These affect, more or less, the exercise of this ex-
treme right of war; but the right itself still remains, and may,
under certain circumstances, be enforced, at the discretion of the
belligerent. Bynkershoek mentions several instances arising in the
seventeenth, and one as early as the fifteenth century, of stipulations
in treaties allowing foreign subjects a reasonable time to withdraw
with their effects. Such stipulations, says Kent, have now become
an established formula in commercial treaties. Emerigon considers
such treaties as an affirmance of common right, or the public law of
Europe. Vattel also says, that the sovereign who declares war can-
not detain those subjects of the enemy who are within his dominions,
at the time of such declaration, and that they are to be allowed
a reasonable time to withdraw, because, by permitting them to enter
his territories, he tacitly promised them protection, and security
for their return. The current of opinion, however, is in favor of the
doctrine that the general right still exists as a rule of law, though
its exercise has been limited and modified by usage and conven-
tional law, and by municipal ordinances and regulations. (Kent,
Com. on Am. Law, vol. 1, p. 56; Grotius, De Jur. Bel. ac Pac., lib. 3,
cap. 9, § 4; Vattel, Droit des Gens, liv. 3, ch. 4, $ 63; Mably, Le Droit
Public Oeuvres, tome 4, p. 334; Phillimore, on Int. Law, vol. 3, § 75;
Wildman Int. Law, vol. 2, p. 12; Burlamaqui, Droit de la Nat. et
des Gens, tome 5, pt. 4, ch. 6; Emerigon, Traité des Assurances, ch.
12, sec. 35; Azuni, Droit Maritime, pt. 2, ch. 4, art. 2, § 7; Bynker-
shoek, Quaest, Jur. Pub., cap. 2, § 7; Manning, Law of Nations, pp.
124, 125; De Felice, Droit de la Nat., etc., tome 2, lec. 23; Bello,
ENEMY PERSONS IN BELLIGERENT TERRITORY.
129
Derecho Internacional, pt. 2, cap. 2, § 2; Heffter, Droit International,
$$ 122, 126; Riquelme, Derecho Pub., Int., lib. 1, tit. 1, cap. 10; De
Cussy, Droit Maritime, liv. 2, ch. 6.)
Halleck, pp. 360-361.
Laws of various nations.
In England it was provided by magna charta, that upon the
breaking out of war, foreign merchants found in England and be-
longing to the country of the enemy, should be attached, - without
harm to body or goods," until it be known how English merchants
were treated by the enemy. By the statute of 27 Edward III., 17,
foreigners were to have convenient warning of forty days, by procla-
mation, to depart the realm with their goods. The act of congress of
July 6th, 1798, authorized the President, in case of war, to direct the
conduct to be observed toward subjects of the hostile nation, being
aliens and within the United States, and in what case, and upon
what security their residence should be permitted; and it declared,
in reference to those who were to depart, that they should be al-
lowed such reasonable time as might be consistent with the public
safety, and according to the dictates of humanity and national hos-
pitality, “for the recovery, disposal, and removal of their goods
and effects, and for their departure." By the Spanish decree of
February, 1829, making Cadiz a free port, it was declared that, in
the event of War, foreigners who had established themselves there for
the purpose of commerce, and becoming alien enemies by means of
the war, were to be allowed a proper time to withdraw, and their
property was not to be subject to sequestration. Other nations have
made similar decrees and ordinances, substituting a milder rule than
the ancient and sterner doctrine of international law; but, however
strong the current of modern authority in favor of the milder prin-
ciple, nevetheless, the ancient and stricter rule must still be regarded
as the law of nations; and such has been the decision of the supreme
court of the United States. There, however, should be a very strong
case in order to justify the exercise of this extreme right, as the
spirit of the age is decidedly against it. At the opening of the war of
1803, between France and Great Britain, Napoleon made prisoners
of all English subjects traveling in France. The pretext for this
exercise of the extreme right of war, was the capture of French ves-
sels in the bay of Audiere by the English prior to the declaration of
war, and other violations of maritime law. The law of retaliation
would hardly seem to require, or even to justify, a resort to means
so unusual and odious, although within the extreme limits fixed by
the ancient and severer rules of war. (Kent, Com. on Am. Law,
130
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
vol. 1, pp. 57–59; Vattel, Droit des Gens, liv. 3, ch. 4, $ 63; Massé,
Droit Comm., liv. 2, tit. 1, ch. 2, $$ 1, 2; Hautefeuille, Droit des Na-
tions, tome 3, p. 267; Alison, History of Europe, first series, vol. 2,
p. 270; Thiers, Hist. du Con, et de l'Empire, liv. 17; Las Cases,
Memoires de Napoleon, vol. 7, pp. 32, 33; Manning, Law of Nations,
pp. 125, 126; U. S. Statutes at Large, vol. 1, p. 577; Bello, Derecho
Internacional, pt. 2, cap. 2, § 2; Heffter, Droit International, $ 126.)
Halleck, pp. 361-362.
Opportunity to withdraw from the country.
Vattel and Burlamaqui concur in the doctrine, that both justice
and humanity require that persons who are surprised by a war in
an enemy's country, should have a reasonable time to withdraw their
persons and effects, and ought not to be treated as enemies, unless
their departure should be unreasonably delayed. This view is coun-
tenanced by several eminent writers on public law, and the language
of Sir William Scott, on several occasions, seems to justify the con-
clusion that a distinction in favor of persons thus circumstanced
would be admitted in the English admiralty. “It seems a necessary
deduction,” says Mr. Duer, “ from these views, that, in the judgment
of these writers, the property of persons thus withdrawing them-
selves from the enemy's country, would, in the course of transporta-
tion, be entitled to the protection of their own government; since,
otherwise, the very object of the lenity exercised toward them might
be defeated, and that, which was granted as a favor, would be con-
verted into a snare. If the peculiar hardships of confiscating the
property of persons thus circumstanced, should induce even the hos-
tile government to relax, for their benefit, the ordinary rules of war,
it is evident, that the same consideration addresses itself still more
directly, and with greater power, to the justice of their own gov-
ernment. It would, indeed, be a strange assertion, that the very
property, which the enemy is bound to release, their own government
can be justified in seizing and condemning. . To protect its sub-
jects who retain their allegiance, is the moral obligation that rests
upon every government, and where the acts for which the protec-
tion is sought are not merely innocent, but meritorious, the obliga-
tion presses with a peculiar force. To confiscate the property of
subjects, in the act of returning to their allegiance, is the extreme
of injustice, as well as of impolicy. It is to punish those whom their
country should desire to reward.” (Phillimore, On Int. Law, vol. 3,
$ 75; Duer, On Insurance, vol. 1, pp. 561–563; Wheaton, Elem. Int.
Law, pt. 4, ch. 1, § 17; Vattel, Droit des Gens, liv. 2, ch. 18, § 344;
liv. 3, ch. 4, $ 63; ch. 5, $8 73, 77; Burlamaqui, Droit de la Nat. et des
Gens, tome 5, pt. 4, ch. 7; Brown v. The U.S., 8 Cranch. Rep., p. 125;
ENEMY PERSONS IN BELLIGERENT TERRITORY.
131
Heffter, Droit International, & 126; Riquelme, Derecho Pub. Int.,
lib. 1, tit. 1, cap. 10; Bello, Derecho Internacional, pt. 2, cap. 2, § 2.)
Halleck, pp. 500, 501.
From the strict theory of hostile relations laid down above, it
would follow, (1) that an enemy's subjects within the country would
be treated as prisoners of war; but such rigor is unknown, unless
in measures of retaliation. The most severe treatment of the for-
eigner allowed by modern usage is to require him to leave the country
within a certain time.
Woolsey, p. 194.
Probably the only application of the rule, [that the subjects of
enemy states are enemies] a relaxation of which has acquired inter-
national authority, is that which has to do with the treatment of
enemy subjects who happen to be in a belligerent country at the out-
break of war.
Hall, pp. 405, 406.
Various measures have been adopted by governments in relation
to alien enemies residing within their territory. Such persons may,
says Rivier, be detained, especially those subject to military service;
or they may be interned in determinate places, or yet may be ex-
pelled, a brief delay being allowed them for settling up their affairs.
But such measures, although justified by the right of self-preserva-
tion, are less and less practiced and are often criticised as not being
in harmony with the spirit of modern war.
Moore's Digest, vol. III, pp. 191, 192; Rivier, Principes du Droit des
Gens, II, 230.
Effect of war on resident enemies.
The effects of war on resident enemies have varied at different
times. Magna Charta provided that foreign merchants in England
should be attached, without harm to body or goods, until it was
known how English merchants were to be treated by the enemy,
when the same treatment was to be extended them. Edward III
allowed forty days for merchants to leave, and a reasonable time has
generally been given since in civilized countries. But aliens have
sometimes been imprisoned, sometimes expelled and their property
confiscated. Even during the late war with Spain President McKin-
ley, acting under the powers originally conferred by a statute of 1798,
warned them by proclamation that they were objects of suspicion,
and at the beginning of the Boer war many British were expelled
from the Transvaal. Grotius, followed by Kent, holds that a state
has the right to imprison all subjects of the enemy who are within its
power until the end of hostilities. Thus, at the sudden outbreak of
132
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
war after the Peace of Amiens, Napoleon imprisoned all the British in
France, as retaliation, however, for the British seizure of French ships
that had come during peace into English ports. Vattel's view has
prevailed that as such foreigners are invited to the country, it is
implied they shall be permitted to leave with their property. Such
was the provision of a treaty of Utrecht with Muyden and Weesp
in 1463, and of a Hanse treaty with France twenty years later. Dur-
ing the next century, under the lead of France, such treaties became
common. In 1756 French subjects were invited to remain in England
despite the war; and that practice, repeated in the declaration against
Spain six years later, has become more and more prevalent, with or
without treaty provisions therefor. Calvo, however, admits an
exception in the case of active soldiers, who may be detained in
order to prevent their return for military purposes. And yet during
the Franco-Prussian war even German soldiers were permitted to
retire, despite the fact that permission might have been refused be-
cause they were a part of the enemy's army. Later on Germans were
expelled from the department in which Paris lies, but that was an
incident of the state of siege then imminent, and, as a military meas-
ure, can hardly be condemned, whatever may be said of the methods
employed. The alien and sedition laws, passed in the United States
during the undeclared war with France in 1798, were unpopular, and
probably led to the overthrow of the Federalists, the dominant
political party at that time.
Taylor, pp. 461, 462.
Compensation for deportation.
Compensation was granted, but only as a matter of grace and fa-
vour, to subjects of Neutral Powers deported by the British from
South Africa during the Boer War, after careful inquiry by a com-
mission which sat in London from May to November, 1901.
Holland, p. 16.
Citizens of one belligerent power in the territory of the other at
the declaration of war may be required to depart, or may be per-
mitted to remain, at the discretion of the state in whose territory
they are resident. The latter course has been pursued in most recent
wars, and is the one most in accordance with the dictates of hu-
manity. This question has frequently been made the subject of treaty
stipulation. It is now generally recognized, however, that such per-
sons are not to be made prisoners of war, and, if ordered to depart,
they are to be given a reasonable time for removal with their prop-
erty and effects. Subjects of the enemy who are permitted to remain
in a belligerent state may be subjected to such special police regula-
tions and supervision as may be deemed necessary by the government
ENEMY PERSONS IN BELLIGERENT TERRITORY.
133
for its security. For reasonable cause they may be required to depart,
or may be forcibly expelled. If they give aid or information to the
enemy, they become subject to the laws of war, and may be treated,
according to the nature of their offence, as prisoners of war, or as
traitors or spies, and may be punished accordingly.
The Joseph, 1 Gallison, p. 545.
The William Bagaley, 5 Wallace, 377; IV Calvo $$ 1912–1914; Hall, § 126;
1 Halleck, pp. 483-487; Manning, pp. 170–175.
G. B. Davis, Elements of International Law, p. 283.
Foreign soldiers in England.
Sir,—The question raised last night by Mr. Arnold-Foster is one
which calls for more careful consideration than it appears yet to have
received. International law has in modern times spoken with no
very certain voice as to the permissible treatment of alien enemies
found within the territory of a belligerent at the outbreak of war.
There is, however, little doubt that such persons, although now
more usually allowed to remain, during good behavior, may be ex-
pelled and, if necessary, wholesale, as were Germans from France in
1870. But may such persons be, for good reasons, arrested, or other-
wise prevented from leaving the country, as Germans were prevented
from leaving France in the earlier days of the Franco-Prussian War?
Grotius speaks with approval of such a step being taken, “ ad minu-
endas hostium vires.” Bynkershoek, more than a,century later, rec-
ognises the right of thus acting, “though it is rarely exercised.” So
the Supreme Court of the United States in "Brown v. United States "
(1814). So Chancellor Kent (1826), and Mr. Manning (1839), is
explicit that the arrest in question is lawful, and that “the individ-
uals are prisoners of war."
Vattel, it is true (1758) ventures to lay down that-
“Le Souverain qui déclare la guerre ne puet retenir les sujets de l'ennemi
qui se trouvent dans ses états au moment de la déclaration ... en leur per-
mettant d'entrer dans ses terres d’y séjourner, il leur a promis tacitement
toute liberté et tout sûreté pour le retour.”
And he has been followed by some recent writers. There is, how-
ever, I venture to hold, no ground for asserting that this indulgent
system is imposed by international law. I am glad, therefore, to find
the Attorney General laying down that,
for strictly military reasons, any nation is entitled to detain and to intern
soldiers found upon the territory at the outbreak of war."
And I should be surprised if, under all circumstances, as the
learned Attorney-General seems to think probable-
England would follow, whatever the strict law may be, the humane and
chivalrous practice of modern times, and would give to any subjects of a
hostile Power who might be found here engaging in civilian pursuits a reason-
134
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
able time within which to leave for their own country, even although they were
under the obligation of entering for service under the enemy's flag."
The doctrine of Vattel has, in fact, become less plausible than it
was before universal liability to military service had become the rule
in most Continental countries. The peaceably engaged foreign resi-
dent is now in all probability a trained soldier, and liable to be re-
called to the flag of a possible enemy.
There may, of course, be considerable practical difficulties in the
way of ascertaining the nationality of any given foreigner, and
whether he has completed, or evaded, the military training required
by the laws of his country. It may also be a question of high policy
whether resident enemies would not be a greater danger to this coun-
try if they were compelled to remain here, than if they were allowed,
or compelled, to depart, possibly to return as invaders.
I am only concerned to maintain that, as far as international law
is concerned, England has a free hand either to expel resident enemies
or to prevent them from leaving the country, as may seem most con-
ducive to her own safety.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 25, (1909).
Holland, Letters on War and Neutrality, pp. 39-41.
A belligerent's subjects on enemy territory could in former times
be prevented from departing, and retained as prisoners of war. Many
States therefore concluded treaties in time of peace, stipulating cer-
tain specified periods which should mutually be given to the subjects
of one State to leave the territory of the other. In the 18th century,
such treaties were common; and the practice grew up that unreason-
able delay in departure beyond the limit of time agreed to would
alone endanger the persons and property of enemy subjects. The last
example of the old rule occurred in 1803, when 10,000 British subjects
were arrested and made prisoners of war in France, as soon as hostili-
ties broke out between the two countries; and many of them were not
set free before 1814. Some recent publicists? maintain that the old
rule can be still applied, in spite of the important fact that no instance
to this effect has occurred during the whole of the 19th century.
Their conclusion, however, is scarcely valid, as it does not take into
account universally established custom.
Sometimes a belligerent State even allows enemy subjects to remain
within its territory during the war. Thus, in the Crimean War Rus-
sian subjects were allowed to remain in Great Britain and France by
1 E. g., Sir Travers Twiss, “Law of Mations," 2 vols. (Oxford, 1884), Vol. II, § 50 ;
A. Rivier, “ Principes du Droit des Gens,' 2 vols. (Paris, 1896), Vol. II, p. 230 ; F. von
Liszt, “ Das Volkerrecht systematisch dargestellt” (Berlin, 1904), § 39.
ENEMY PERSONS IN BELLIGERENT TERRITORY.
135
the two respective governments; and in the Russo-Japanese War
Russians were permitted to remain in Japan, and Japanese in Russia.
But a belligerent is by no means bound to grant such a privilege.
During the Franco-German War the French Government expelled all
Germans; in the South African War the former South African Re-
publics expelled most of the British subjects; and in the Russo-Japa-
nese War Russia expelled Japanese subjects from her provinces in the
Far East. Treaties concluded as to enemy subjects remaining on
hostile territory are not considered to be binding, should such cir-
cumstances arise as to make them a danger to the State.
Phillipson, pp. 30–32.
The treatment of resident enemy nationals has undergone a great
change for the better in modern times. Ancient theory and practice
regarded them as enemies, individually, and admitted the right to
arrest and imprison them. The last instance of this rigorous rule
being put into force is Napoleon's detention of British subjects who
happened to be in France when war broke out in 1803. Present
usage allows enemy nationals to depart freely, even where they belong
to the armed forces of the other belligerent. “A State,” says Bonfils,
“has an incontestable right to refuse to help its enemy's recruit-
ing ... but, from the point of view of practical utility the measure
[of detaining future recruits] is condemned. To detain subjects of
the enemy who would otherwise be mustered into his army is to
court reciprocal treatment, and is, besides, to undertake a close sur-
veillance over the movements of these men, who, detained against
their will, will be induced by feelings of patriotism to seek every
means of harming the country which detains them.” “There is a
usage," says Pillet,“ in favour of placing no obstacle in the way of
enemy nationals who are recalled to serve in their country's army.”
"This usage applies only to men quitting the enemy's country upon the
outbreak of war. It does not hold in the case of the occupation of
the hostile territory. In such a case the invader suspends the recruit-
ing laws in force and makes it a penal offence for the inhabitants to
quit the territory for the purpose of joining their national forces.
When the war of 1870–1 broke out, France and Germany allowed
freedom of departure of one another's reservists, and the same rule
was followed in the Spanish-American War and in the Russo-
Japanese.
Spaight, pp. 28, 29; Bonfils, $$ 1052, 1053; Pillet, p. 80.
.
“Present usage," says Professor Le Fur,“ does not admit of the
expulsion en masse of enemy subjects resident in a belligerent's ter-
ritory, save when the needs of defence demand such expulsion, any
more than, in the converse case, it admits the retention of those who
136
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
wish to return to their own country, even when they are to be in-
corporated in the army." The bad precedent set by the Confederate
Government in 1861, when it ordered the banishment of all alien
enemies, has not been followed in subsequent wars. France and Ger-
many allowed enemy subjects to continue to reside in their respective
territories during the war of 1870-1, but the former country was led
by military exigencies to rescind the general privilege so far as
Paris and the Department of the Seine were concerned, at the end
of August, 1870. A Proclamation was then issued by General
Trochu which enjoined "every person not a naturalised Frenchman
and belonging to one of the countries at war with France to
depart within three days, under penalty of arrest and trial in the
event of disobedience.
The incident is instructive as showing a usage in the making; for,
though there were 35,000 in Paris alone and their expulsion was
clearly justifiable as a precautionary measure of defence, the general
opinion in Europe was that they were harshly treated, and a sum of
100 million francs was claimed, as part of the War Indemnity, in
respect of the losses they sustained by being driven out. It shows,
as Hall observed, that public opinion “was already ripe for the
establishment of a distinct rule allowing such persons to remain
during good behavior. The usage has been strengthened by the
precedents set in the Russo-Turkish War of 1877–8, the Chino-
Japanese War of 1894, and the Russo-Japanese War, in all of which
enemy residents were suffered to remain. In the Graeco-Turkish
War of 1897, Turkey ordered the expulsion of all Greeks residing in
Ottoman territory, but the execution of the order was postponed
from time to time, and the war ended before the period of grace
which was finally fixed had expired. A similar decree of expulsion
was issued in the Transvaal and Orange Free State in the Anglo-Boer
War, but, except at Johannesburg, it was not carried strictly into
effect. Johannesburg, with its preponderating Uitlander popula-
tion, was counted upon by the British military experts as likely to
require a commando of 5,000 Boers to keep its disaffected citizens in
check. Most, however, of the Uitlanders either voluntarily left the
town before the outbreak of the war or were sent away under the
expulsion decree; the remainder, some of whom had been left by
various firms to guard their interests with the special sanction of
the Government, while others had evaded the order of expulsion,
were summarily expelled under a new decree on April 30, 1900, after
the explosion in the Begbie powder factory, which was attributed
to British agency. Although the complicity of the British resi-
dents in the explosion is quite unsupported by evidence, one may, on
the whole, looking to the past record of Johannesburg—a hotbed of
disaffection in the heart of the Boer dominions—agree with Pro-
ENEMY PERSONS IN BELLIGERENT TERRITORY.
137
a
fessor Despagnet in regarding the Boer Government's action as
measure rendered indispensable by circumstances.” Whatever right
of continuing their residence may be accorded to enemy subjects, it
must be subordinate to considerations of military necessity.
Spaight, pp. 29–31; R. D. I., July-August, 1898, p. 677 ; Bonfils, $ 1055;
Hall, p. 392; Despagnet, p. 224.
The outbreak of war affects likewise such subjects of the bellig-
erents as are at the time within the enemy's territory. In former
times they could at once be detained as prisoners of war, and many
States, therefore, concluded in time of peace special treaties for
the time of war expressly stipulating a specified period during which
their subjects should be allowed to leave each other's territory un-
molested. Through the influence of such treaties, which became
pretty general during the eighteenth century, it became an interna-
tional practice that, as a rule, enemy subjects must be allowed to
withdraw within a reasonable period, and no instance of the former
rule has occurred during the nineteenth century. Although some
writers even nowadays maintain that according to strict law the old
rule is still in force, it may safely be maintained that there is now a
customary rule of International Law, according to which all such
subjects of the enemy as have not according to the Municipal Law
of their country to join the armed forces of the enemy must be
allowed a reasonable period for withdrawal. On the other hand,
such enemy subjects as are active or reserve officers, or reservists, and
the like, may be prevented from leaving the country and detained as
prisoners of war, for the principle of self-preservation must justify
belligerents in refusing to furnish each other with resources which
increase their means of offense and defense. However that may be,
a belligerent need not allow enemy subjects to remain on his terri-
tory, although this is frequently done. Thus, during the Crimean
War Russian subjects in Great Britain and France were allowed to
remain there, as were likewise Russians in Japan and Japanese in
Russia during the Russo-Japanese War, and Turks in Italy dur-
ing the Turco-Italian War. On the other hand, France expelled
all Germans during the Franco-German War in 1870; the former
South African Republics expelled most British subjects when
war broke out in 1899; Russia, although during the Russo-Japanese
War she allowed Japanese subjects to remain in other parts of her
territory, expelled them from her provinces in the Far East; and
in May 1912, eight months after the outbreak of the Turco-Italian
War, Turkey decreed the expulsion of all Italians, certain classes
excepted. In case a belligerent allows the residence of enemy sub-
jects on his territory, he can, of course, give the permission under
certain conditions only, such as an oath to abstain from all hostile
110678_19
10
138
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
acts or a promise not to leave a certain region, and the like. And
it must be especially observed that an enemy subject who is allowed
to stay in the country after the outbreak of war must not, in case
the forces of his home State militarily occupy the part of the
country inhabited by him, join these forces or assist them in any
way. If, neverthedess, he does so, he is liable to be punished for
treason by the local Sovereign after the withdrawal of the enemy
forces.
Oppenheim, vol. II, pp. 131, 132.
It will be convenient to begin by considering the case of enemy
subjects found in a state at the outbreak of the war. The treatment
of such persons has varied very much at different times. In the
Middle Ages a right to detain them as captives was held to exist,
and though enemy merchants were generally allowed to depart,
the power to arrest did not become obsolete from disuse. Accord-
ingly the early publicists were obliged to lay down that it existed,
though they.strove to mitigate its severity. Grotius declared that
enemies found within a territory at the outbreak of war might be
captured and held as prisoners while the war lasted, but he added
that they might not be detained after the termination of hostilities,
as in his day ordinary prisoners were. But as commerce grew more
powerful arrest was less frequent, till in the middle of the eighteenth
century the right to resort to it was denied by Vattel; and since that
day numerous treaties have been negotiated, giving a time for with-
drawal varying from six months to a year. Such stipulations are
hardly needed now; for the old right of arrest has been rendered
obsolete by the continuous contrary custom of nearly a hundred and
fifty years. The only case of detention to be found in modern times
occurred in 1803, when Napoleon arrested the British subjects found
in France after the rupture of the Treaty of Amiens; but this was
placed on the ground of reprisal, and has almost always been re-
garded as a violent proceeding carried out in defiance of right. The
modern doctrine is that expulsion may be resorted to in extreme
cases, but unless there are special reasons to the contrary enemy sub-
jects should be allowed to remain in the country as long as they give
no aid or information to their own side. Great Britain inaugurated
this liberal policy. In 1756, at the outbreak of war with France, she
gave permission for French subjects “who shall demean themselves
dutifully” to remain in the country; and her treaty of 1794 with the
United States was the first to provide that in future wars between
the contracting parties, subjects of each residing in the country of
the other should remain unmolested as long as they lived peaceably
and observed the laws, and should be granted a term of twelve
months to wind up their affairs and leave, if their conduct caused
ENEMY PERSONS IN BELLIGERENT TERRITORY.
139
them to be suspected. Other states have followed these examples,
and treaties containing similar provisions are constantly being con-
cluded. A modern instance of expulsion occurred in 1870 when the
French Government ordered German subjects to leave the depart-
ment of the Seine at the time when the German armies were mov-
ing on Paris and the population was intensely excited against all
who were suspected of belonging to the enemy nationality. The au-
thorities felt doubtful of their ability to protect such persons, and
therefore adopted the extreme measure of compelling them to depart.
The Boer War of 1899–1902 afforded another instance, and the
Russo-Japanese War of 1904–1905 a third. In the former struggle
various categories of British subjects living in the territory of the two
Dutch republics were expelled, and in the latter Japanese residents
in the Russian Imperial Lieutenancy of the Far East were ordered to
depart, though no expulsion took place from the rest of the Russian
Empire. Japan, on the other hand, allowed the Russians within her
borders to remain during the war on condition that they did nothing
contrary to Japanese interests.
It is clear that in the absence of treaty stipulations the right to
expel remains, though the right to arrest and imprison must be
regarded as obsolete. This last statement, however, applies only to
alien enemies engaged in peaceful pursuits, and likely to continue
so occupied throughout the war. But now that most continental
nations have resorted to compulsory military service, it often happens
that a young man who settles in a foreign country is already a trained
soldier, and would be recalled to the colors in the event of war
between the country of his birth and the country of his residence.
What power has the latter of protecting herself against the reênforce-
ment of her enemy's armed forces by thousands of effective com-
batants? If she expels them, or merely permits them to go should
they desire to do so, they will soon be fighting against her. If she
bids them remain, whether they wish to depart or not, they may rise
and paralyze her defence in the event of invasion, and would in any
case need constant watching. In recent times they have been per-
mitted to depart; but a third course is to revive the right of arrest,
which has never been formally abandoned. It fell into disuse in
times when soldiers were a professional class, little likely to migrate
by thousands and tens of thousands into foreign countries in order to
earn therein a peaceful living by commercial and industrial pursuits.
The new International Law which is rapidly growing up by means
of general agreement among civilized powers might with advantage
make a pronouncement on this subject. It would be necessary to
distinguish between men who on their return would be embodied
immediately in their country's forces, and others, whether men or
women, who would in all probability continue their harmless avoca-
140
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tions, if left unmolested. The latter should be free either to remain
during good behavior, or to depart when they pleased. With regard
to the former, the country of their residence should be armed with
power to detain them as prisoners of war, if it thought fit. A
precedent for discrimination of this kind can be found in the action
of the Hague Conference of 1907. In its sixth Convention it em-
powered a belligerent to capture enemy merchantmen found in its
ports at the outbreak of hostilities if their build showed that they
were “intended for conversion into warships," while it allowed no
confiscation in the case of other enemy vessels of commerce similarly
situated.
Lawrence, pp. 387–390.
On the civil side of war opinion has not moved so far from the
mediaeval point of view. Of the questions which arise in this depart-
ment there may be at once dismissed as obsolete that of making pris-
oners of innocuous persons happening to be in the territory of the
enemy state.
Westlake, vol. 2, p. 37.
On all other points relating to enemy subjects and property within
the territory the first relaxation of the ancient law, which made pris-
oners of the subjects and confiscated the property, seems to have taken
place in favour of merchants. By s. 41 of Magna Carta (1215)
King John provided that “If in time of war merchants of the coun-
try at war with us shall be found in our country at the outbreak of
the war, they shall be attached without damage to their bodies or
their goods, until it is known to us or to our chief justice how mer-
chants of our country who are then found in the country at war
with us are treated; and if ours are safe there the others shall be
safe in our country.” When Louis IX arrested the English mer-
chants and their goods in France at the outbreak of war with Eng-
land in 1242, Matthew Paris describes his conduct as an outrage on
the ancient dignity of France, and Henry III retaliated. By the
Statute of Staples in 1354, 27 Ed. III, it was provided that foreign
merchants, on the breaking out of war with their country, should
have forty days in which to depart with their goods, and forty more
if prevented by accident from availing themselves of the first grace,
with liberty to sell their goods. An ordinance of Charles V of
France gave foreign merchants, trading in France at the time of a
declaration of war, liberty to depart freely with their effects. And
by a treaty of 1483 between Louis XI and the Hanse Towns mer-
chants of the latter were allowed to remain in France for a year
after a war should break out, with protection for their persons and
ENEMY PERSONS IN BELLIGERENT TERRITORY.
141
goods. Later, treaties became common by which not only the mer-
chants but all the subjects of the contracting states were allowed to
withdraw themselves and their property from the respective coun-
tries in the event of war between them. Bynkershoek, who thought
that the law remained unaltered in the absence of treaty, was able
to give a list of such; and Hall has added a list of such, concluded
since the middle of the eighteenth century, in which the time allowed
for withdrawal and arrangement of affairs varies from six months
to a year. But the modern practice goes further. A right of resi-
dence during good behaviour, with safety to their effects, was allowed
to French and Spanish subjects respectively by the British declara-
tions of war in 1756 and 1762, and Hall has given a list of treaties,
beginning with that of 1795 between Great Britain and the United
States, in which that right is stipulated. Of course no treaty can
bind a government to allow foreigners to remain in the country dur-
ing war if it believes that such a course would be dangerous to the
state, either from reasonable suspicion entertained of individuals or
from the special circumstances of the case as affecting classes of
persons. No general stipulations would be interpreted as contem-
plating such a case, and no special stipulations restricting the power
of a government in such a case can be imagined. The French gov-
ernment in 1870 was therefore within its right in expelling Germans
from the department of the Seine and requiring them either to leave
France or to retire to the south of the Loire, whatever may be thought
of the real necessity for any such measure.
Permission to enemy subjects to remain in the country, even if in
the express words of a treaty it should happen to stand alone, must
in common sense carry with it permission to enjoy their property
while so remaining. And if enemy subjects being in the country may
enjoy their property, it would be inequitable to confiscate that of
those who are not in it and therefore as individuals cause no danger.
This has been admitted by the conclusion of many treaties in which
it is expressly stipulated that the debts, shares in public funds or in
companies, and monies in banks of the respective subjects shall not
be sequestered or confiscated in case of war. The system of the
treaties may therefore be deemed to amount to a general agreement,
on the part of governments, that modern international law forbids
making prisoners the persons or confiscating the property of enemy
subjects in the territory at the outbreak of war, or, saving the right
of expulsion in case of apprehended danger to the state, refusing
them the right of continued residence during good behavior. When
in 1803 Napoleon ordered the arrest of all British subjects in France
and the Italian Republic, he did not claim to do so on the general
ground of their enemy character, but put the measure as one of
i
142
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
retorsion for the capture of French merchant ships before declara-
tion of war, an excuse which was not justified in view of the then
customary character of that practice.
Westlake, vol. 2, pp. 44-46.
Lastly, we shall see that for purposes of maritime, capture the
enemy character of property is not decided in England by the nation-
ality of the owner, but by his domicile in a peculiar sense, differing
considerably from ordinary domicile, which is known as trade domi-
cile in war, but is equally applicable to persons not engaged in trade.
The analogy, as well as reasons of convenience, suggests that in all
this section enemy subjects or directors should be understood as those
persons, whatever their nationality, who have such a domicile in the
enemy's country and no others. See Treby, C. J., in Wells v. Wiz-
liams, 1 Raym. 282, 1 Salk. 46, and Lord Lindley in Janson v. Drie-
fontein Consolidated Mines, [1902] A. C. 505. “In the case of
Clarke v. Morey, 1813, 10 Johnson 69, it was held by Kent, C. J., that
aliens residing in the United States at the time of war breaking out
between their own country and the United States, or who come to
reside in the United States after the breaking out of war under an ex-
press or implied permission, may sue and be sued as in time of peace;
that it is not necessary for this purpose that such aliens should have
letters of safe conduct or actual license to reside in the United States,
but that license and protection will be implied from their being suf-
fered to remain without being ordered out of the United States by
the executive. See Seymour v. Bailey, 1872, 66 Ill. 288, where au-
thorities are collected.” Scott 545, note.
Westlake, vol. 2, p. 54.
Right of enemy aliens to withdraw.
Enemy Persons found within the Territory of a Belligerent:-(i.)
The Right of Withdrawal.-It was one of the consequences of the
earlier view of the relation of war, that the subjects of one bellig-
erent who were found within the territory of the other, on or
after the outbreak of war, were liable to seizure and detention and
their property to confiscation. This was first relaxed in the case
of foreign merchants, who, sometimes by treaty and sometimes by
municipal law but subject to conditions of reciprocity, were allowed
to withdraw themselves and their property within a given time after
the commencement of hostilities. Next, the scope of such treaties
appears to have been enlarged so as to include other enemy subjects.
Finally, here, as in other cases, a practice originating in treaties made
between particular States gradually gave rise to an international
usage, which in time became an obligatory custom. Such a custom,
at any rate, appears to have established itself in the course of the
ENEMY PERSONS IN BELLIGERENT TERRITORY.
143
18th century. By virtue of this custom the subjects of one belligerent
found within the territory of the other on the outbreak of war were
allowed to depart freely within a period reasonably sufficient for the
arrangement of their affairs and compatible with public safety; sub-
ject, however, to an exception in the case of persons whose detention
might be a matter of political or military necessity. And this right
of withdrawal may still be taken advantage of in those cases where
the later and the more liberal practice of allowing enemy subjects to
remain is not observed. But it will not extend to enemy persons who
outstay the period limited for withdrawal, or who voluntarily enter
the territory afterwards. The only modern instance of the violation
of this custom occurred in 1803, when British subjects found in
France were arrested and some of them detained until 1814 by order
of Napoleon; but this proceeding was resorted to rather as a meas-
ure of reprisal for an alleged wrongful seizure of French merchant.
vessels, and was even then generally reprobated.
Cobbett, pt. II, p. 58.
Right of enemy aliens to remain.
(ii) The Right to Remain.-Already in the 18th century, however,
we notice the growth of a more liberal practice under which enemy
subjects were sometimes allowed to remain during good behaviour.
This was at first probably rather tolerated than conceded, although on
some occasions officially authorized; whilst, later, we find such a
right occasionally conferred by treaty or even by municipal law. In
the increased intercourse of modern life and commerce the newer
usage was found to be conducive to the interests of both parties;
with the result that it is now often followed irrespective of treaty.
At the same time, having regard to the varying practice of States
in recent wars, it cannot, so far, be said to have become obligatory;
whilst in any case it is subject to qualification where the expulsion of
enemy subjects, whether as individuals or as a class, is deemed neces-
sary from the standpoint of public policy or military necessity.
Where enemy subjects are allowed to remain, it would seem to follow
that they are free from those civil disabilities which commonly attach
to alien enemies under the municipal law; although they are subject
to such regulations, including registration, as may be prescribed in
that behalf, and to the same restrictions as regards trading with the
enemy as may attach to other residents.
Cobbett, pt. II, p. 59.
Practice of nations.
In the war of 1854, Russian subjects were allowed to remain both
in Great Britain and France. In the war of 1870, German subjects
were at first allowed to remain in France so long as they furnished
144
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
no ground for complaint, although for new admissions express per-
mission was required; whilst, subsequently, all enemy subjects were
required to withdraw from the department of the Seine, this pro-
ceeding being justified by military necessity. In 1897, Turkey, on the
outbreak of war with Greece, decreed the expulsion of ali Greek
subjects resident within the Ottoman dominions. In the Spanish-
American War of 1898, Spanish subjects were expressly authorized
to remain in the United States, although admonished that they were
the object of suspicion. In the South African war of 1899, many
British subjects were expelled from the territories of the two repub-
lics. In the Russo-Japanese war of 1904, Japanese subjects were
expelled from the Russian provinces of the Far East, although
allowed to remain in other parts; but Russian subjects were allowed
to remain in Japan on condition of registration.
Cobbett, pt. II, p. 58, note.
By the eighteenth century, we find certain temperamentum intro-
duced. It became customary, in the Declaration of War itself, for
the sovereign to promise formal and ample protection to alien ene-
mies being in the realm and demeaning themselves peaceably. To
deny them rights after such a promise would have been contrary to
good faith. Consequently we find Sir M. Foster observing that in
such a case they enjoy full protection for their persons and property
in as ample a manner as the native subject. Foster's object was to
estimate their liability to be tried for treason, and he grounds the lia-
bility on the correlative protection they enjoy.
So, if they are given an individual license or safe conduct, they
enjoy civil rights within the terms of the instrument.
But it does not follow that if, in the absence of such a guarantee
of full royal protection, and of any individual license implying the
same, they are in anything like the same privileged position. If
they are merely permitted to remain, all that the sovereign can cer-
tainly be said to guarantee to them is personal safety.
Baty and Morgan, p. 251; Foster's Discourse of High Treason, pp.
185, 186.
Laws of United States.
By the act of July 6, 1798, 1 Stat. 577, R. S. § 4067, whenever there,
is a declared war between the United States and any foreign govern-
ment or any invasion or predatory incursion is perpetrated, at-
tempted, or threatened against the territory of the United States by
a foreign government, and the President makes public proclamation
of the event, all male natives, citizens, denizens, or subjects of the
hostile government who are fourteen years old and upward and who
are not actually naturalized may be arrested and removed as alien
ENEMY PERSONS IN BELLIGERENT TERRITORY.
145
enemies; and the President is authorized to direct the conduct to be
observed on the part of the United States toward the aliens who are
liable to removal, the manner and degree of restraint to which they
shall be subject, and the conditions and security on which their resi-
dence may be permitted.
By the act of July 6, 1812, 2 Stat. 781, R. S. sec. 4068, when an
alien who becomes liable to removal as an enemy is not chargeable
with actual hostility or other crime against the public safety, he must
be allowed for the recovery, disposal, and removal of his goods and
effects and for his departure the full time which may be stipulated
in any treaty; and where no such treaty exists the President may fix
such reasonable time as may be consistent with the public safety and
accord with the dictates of humanity and national hospitality.
By the act of July 6, 1798, 1 Stat. 577, R. S. sec. 4069, the courts
of the United States having criminal jurisdiction are, after the
President has issued his proclamation, required, upon complaint
that an alien enemy is at large within the jurisdiction, to the danger
of the public peace or safety and contrary to the tenor and intent of
the proclamation or other regulations which the president may have
established, to cause such alien to be brought before them and ex-
amined, and, sufficient cause appearing, to order him to be removed
from the United States or to give sureties for his good behavior or
to be otherwise restrained conformably to the President's proclama-
tion or regulations, and to imprison or otherwise secure such alien
till the order concerning him shall be performed.
Moore's Digest, vol. 2, p. 138.
“It is not only the right but may sometimes be the duty of states
to establish checks upon the transit and sojourn of foreigners, how-
ever harsh those regulations may appear, or opposed to old estab-
lished policy. Indeed, in two countries where more freedom of entry
and exit, and fewer restrictions are to be met with than elsewhere,
within the last few years such regulations have been published.
Thus, during the revolutionary period of 1848, an act of Parliament
(11 and 12 Vict., c. 20) was passed in Great Britain ...
.. by which
power was given to the executive in England and Ireland to remove
aliens from the realm; and in the United States it was declared, by
an order, dated 19th August, 1861, 'that no person, if à foreigner,
should be allowed to land in the United States, without a passport
from his own Government, countersigned by a minister or consi:l of
the United States. »
Abdy's Kent, 110. See London Times, January 2, 1865.
The order of Aug. 19, 1861, as is elsewhere shown, was a war measure, and
was not confined to aliens. It prohibited any person from leaving the United
146
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
5
States except with a passport either issued from the Department of State or
countersigned by the Secretary of State, and forbade any person to land without
a passport from a minister or consul of the United States, or, if a foreigner,
from his own government, countersigned by such minister or consul. See supra,
$ $ 532, 533, where the subject is more fully treated.
Noore's Digest, vol. II, pp. 138, 139.
By treaties of commerce it has often been stipulated that the citi-
zens of the one country residing within the territories of the other
shall, in the event of war, have a certain time within which to collect
or dispose of their effects and depart. In yet other cases it has been
provided that such persons may during the war continue their resi-
dence and business, so long as they behave themselves. See, for ex-
ample, the treaty between the United States and the Argentine Con-
federation. July 10, 1853, Article XII.
"Japanese subjects are allowed to continue, under the protection
of the Russian laws, their sojourn and the exercise of peaceful occu-
pations in the Russian Empire, excepting in the territories which are
under the control of the imperial viceroy in the Far East." (Im-
perial Russian order, Feb. 14, 1904, For. Rel. 1904, 727; also Monthly
Consular Reports, May, 1904, LXXV. 397.)
Moore's Digest, rol. VII, p. 192.
In 1755 British subjects were expelled from France, while in 1803
those between the ages of 18 and 60 were declared prisoners of war by
Napoleon, ostensibly as an act of reprisals for the capture of French
ships. During the Crimean war Russian subjects were permitted to
remain in England and France. In 1870 Frenchmen were permitted
to remain in Germany. On the contrary, Germans in France were
first detained; but afterwards, by an order of Aug. 28, 1870, those
residing in Paris or the Department of the Seine, were, on the ground
of national defense as well of their personal safety, required to de-
part within three days; and either to leave the country or to retire
to one of the departments below the Loire. By a ukase of May 12,
1877, Turkish subjects in Russia were permitted to continue to reside
there and continue their business, subject to the laws. In 1879
Chileans were expelled from Bolivia and their goods confiscated.
(Ibid.)
The instructions issued to United States marshals with regard to
alien enemies during the war of 1812 were of a general nature. The
minor police regulations concerning such aliens were confided to the
marshals, respectively, under those general instructions. (Mr.
Adams, Sec. of State, to Mr. Cuthbert, M. C., March 1, 1821, 18 MS.
Dom. Let. 274.)
Moore's Digest, vol. VII, p. 192.
ENEMY PERSONS IN BELLIGERENT TERRITORY.
147
Right of control.--Every belligerent state possesses the inherent
right to take such steps as it may deem necessary for the control of
all persons whose conduct or presence appears dangerous to its safety
In strict law enemy subjects located or resident in hostile territory
may be detained, interned in designated localities, or expelled from
the country
U. S. Manual, p. 18.
Modern practice as to status.—It is now universally recognized that
hostilities are restricted to the armed forces of belligerents, and that
the unarmed citizens who refrain from acts of hostility and pursue
their ordinary avocations must be distinguished from the armed
forces of the belligerent, must be treated leniently, must not be in-
jured in their lives or liberty, except for cause or after due trial,
and must not, as a rule, be deprived of their private property.
U, S. Manual, pp. 18, 19.
Practice as to detention and internment.--Enemy subjects are not
made prisoners en masse on the breaking out of hostilities. Persons
known to be active or reserve officers, or reservists, of the hostile
army, as well as persons suspected of communicating with the enemy,
will be detained and, if deemed advisable, interned on the ground of
self-preservation, in the exercise of the right of control.
U. S. Manual, p. 19.
Practice as to expulsion.-In modern practice the expulsion of the
citizens or subjects of the enemy is generally decreed from seaports,
fortresses, defended areas, and the actual or contemplated theaters of
operation. From other territory the practice is not uniform, expul-
sion being resorted to usually for grave reasons of state only. When
decreed, the persons expelled should be given such reasonable notice,
consistent with public safety, as will enable them to arrange for the
collection, disposal, and removal of their goods and property.
U. S. Manual, p. 19.
It is, however, a universally recognized rule of International Law
that hostilities are restricted to the armed forces of the belligerents,
and that the ordinary citizens of the contending States, who do not
take up arms and who abstain from hostile acts, must be treated leni-
ently, must not be injured in their lives or liberty, except for cause
or after due trial, and must not as a rule be deprived of their private
property.
It is thus no longer considered admissible to detain as prisoners
subjects of one of the hostile parties travelling or resident in the soun-
try of the other at the time of the outbreak of war.
V
148
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The view that such action is illegal, except in grave emergency,
has steadily gained support. Article 5 of the Regulations annexed to
the Convention, 1899, concerning the Laws and Customs of War on
Land, 1899, permitted the internment of prisoners of war, and it was
contended at the Conference of 1907 that the terms of the article
afforded a strong argument, e contrario, that the internment of enemy
subjects not prisoners of war was prohibited. No vote was taken on
the point, but this interpretation of the article was generally ac-
cepted, subject to the reservation of the right which every State un-
doubtedly possesses of taking such steps as it may deem necessary for
the control of all persons whose presence or conduct appear danger-
ous to its safety.
This immunity, however, cannot apply to persons known to be ac-
tive or reserve officers, or reservists, of the hostile army. For the
principle of self-preservation must justify belligerents in refusing
to furnish each other with resources that will increase their means
of defence.
Edmonds and Oppenheim, arts. 11-13.
The expulsion of subjects of the enemy from the territory of the
opposing State is in strict law admissible, but is usually not resorted
to unless grave reasons make it advisable.
Belligerents have in recent years always acted in obedience to this
principle. Thus expulsion has been decreed from seaports, fortresses,
and defended areas, where special precautions were necessary, and
from the actual or expected theatres of hostilities.
Should the expulsion of any person be ordered he should be given
such reasonable notice as may be consistent with public safety, in
order to make arrangements for the custody of his property and
preparations for his departure.
Edmonds and Oppenheim, arts. 14–16.
“I enclose herewith a memorial filed in the Department by Mr.
Frank Crus, complaining of his expulsion by British authorities
from South Africa.
“The Department refers in this connection to its instructions No.
461, of October 6, and No. 468, of October 16, ultimo, for your guid-
ance in this case.
“ While at all times asserting the right of expulsion by a state
from its territory of persons who are dangerous to its security, the
Covernment of the United States, in consonance with the enlightened
precepts of authoritative writers on international law, and especially
of the more recent ones does not assert in practice the existence of
the right without just grounds for, expulsion, which grounds and
evidence thereof it believes the expelling Government should commu-
ENEMY PERSONS IN BELLIGERENT TERRITORY.
149
nicate to the Government of the person expelled, as well as the evi-
dence showing the reasonableness of such expulsion. It is not
believed that Her Majesty's Government will assert an arbitrary
right of expulsion which it has not been the practice of the Govern-
ment of the United States to assert for itself.
“You will therefore bring the matter to the attention of Her Ma-
jesty's Government and request an investigation of the facts and for
such further action as may be equitable and just in the premises.'
Mr. Hay, Sec. of State, to Mr. Choate, amb. to England, No. 494, November
14, 1900, MS. Inst. Gr. Br. XXXIII. 505.
See, as to the South African Deportation Claims Commission, Mr. Hill, Act.
Sec. of State, to Mr. Choate, No. 635, May 17, 1901, id. 608. It is stated in this
instruction that the Department of State had rejected as without merit certain
claims of British subjects for deportation from Hawaii during the royalist
insurrection in 1893; that the British Government then proposed arbitration;
and that the Department made a counter-proposal to submit to a common
arbitration both the Hawaiian and South African deportation claims.
Moore's Digest, vol. 4, p. 140.
In The Santa Cruz, 1 C Rob. 64, the Court said: “It is a principle
sanctioned by that great foundation of the law of England, Magna
Charta itself, which prescribes that, at the commencement of a war,
the enemy's merchants shall be kept and treated as our own mer-
chants are kept and treated in their country.”
0. &0. R. R. v. U. S., 20, Ct. Cls., 49.-The court said: “The Gov-
ernment may prescribe the conditions under which its executive
officers are to deal with its alien enemies."
U. S. Manual, p. 18.
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
In order to favour commerce on both sides as much as possible, it
is agreed that, in case a war should break out between the said two
nations, which God forbid, the term of nine months after the declar-
ation of war shall be allowed to the merchants and subjects respec-
tively on one side and the other, in order that they may withdraw
with their effects and movables, which they shall be at liberty to
carry off or to sell where they please, without the least obstacle; nor
shall any seize their effects, and much less their persons, during the
said nine months; but on the contrary, passports which shall be
valid for a time necessary for their return, shall be given them for
their vessels, and the effects which they shall be willing to carry
with them. And if anything is taken from them, or if any injury
is done to them by one of the parties, their people and subjects,
during the term above prescribed, full and entire satisfaction shall
be made to them on that account. The above-mentioned passports
shall also serve as a safe conduct against all insults or prizes which
privateers may attempt against their persons and effects.
Treaty of Amity and Commerce between the United States and
Sweden, concluded April 3, 1783, Article XXII.
If war should arise between the two contracting parties, the mer-
chants of either country then residing in the other shall be allowed
to remain nine months to collect their debts and settle their affairs,
and may depart freely, carrying off all their effects without molesta-
tion or hindrance;
Treaty of Amity and Commerce between the United States and
Prussia, concluded July 11, 1799, Article XXIII.
In case of any dispute arising, from the violation of any of the
articles of this treaty, no appeal shall be made to arms; nor shall
war be declared on any pretext whatever; but if the Consul residing
at the place where the dispute shall happen shall not be able to settle
the same, the Government of that country shall state their grievances
in writing, and transmit it to the Government of the other; and the
period of twelve calendar months shall be allowed for answers to be
returned, during which time no act of hostility shall be permitted
by either party; and in case the grievances are not redressed, and war
should be the event, the Consuls and citizens or subjects of both
150
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
151
parties, reciprocally, shall be permitted to embark with their effects
unmolested on board of what vessel or vessels they shall think proper.
Treaty of Peace and Anity between the United States and Tripoli,
concluded June 4, 1805, Article XV.
If, by any fatality, which cannot be expected, and which God
forbid, the two contracting parties should be engaged in a war with
each other, they have agreed, and do agree, now for then, that there
shall be allowed the term of six months to the merchants residing
on the coasts and in the ports of each other and the term of one year
to those who dwell in the interior, to arrange their business and
transport their effects wherever they please, giving to them the
safe conduct necessary for it, which may serve as a sufficient protec-
tion until they arrive at the designated port. 'The citizens and sub-
jects of all other occupations, who may be established in the terri-
tories or dominions of the United States, and of the Empire of
Brazil, shall be respected and maintained in the full enjoyment of
their personal liberty and property, unless their particular conduct
shall cause them to forfeit this protection, which, in consideration
of humanity, the contracting parties engage to give them.
Treaty of Amity, Commerce, and Navigation, concluded between the
United States and Brazil, December 12, 1828, Article XXV.
Neither the debts due from the individuals of the one nation to
the individuals of the other, nor shares nor money which they may
have in public funds nor in public or private banks, shall ever in
any event of war or national difference be sequestrated or confiscated.
Treaty of Amity, Commerce, and Navigation, concluded between the
United States and Brazil, December 12, 1828, Article XXVI.
And if a war shall break out between the parties, nine months
shall be granted to all the subjects of both parties to dispose of their
effects and retire with their property.
Treaty of Peace and Friendship between the United States and
Morocco, concluded September 16, 1836, Article XXIV.
If by any fatality, which cannot be expected, and God forbid,
the two contracting parties should be engaged in a war with each
other, they have agreed and do agree now for then, that there shall
be allowed the term of six months to the merchants residing on
the coasts and in the ports of each other, and the term of one year
to those who dwell in the interior, to arrange their business and
transport their effects wherever they please, giving to them the
safe-conduct necessary for it, which may serve as a sufficient protec-
tion until they arrive at the designated port. The citizens of all
152
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
other occupations who may be established in the territories or do-
minions of the United States or of New Granada, shall be respected
and maintained in the full enjoyment of their personal liberty and
property, unless their particular conduct shall cause them to forfeit
this protection, which, in consideration of humanity, the contracting
parties engage to give them.
Treaty of Peace, Amity, Navigation, and Commerce concluded between
the United States and Colombia (New Granada), December 12,
1846, Article XXVII.
If (which is not to be expected, and which God forbid) war should
unhappily break out between the two republics, they do now, with a
view to such calamity, solemnly pledge themselves to each other
and to the world to observe the following rules; absolutely where
the nature of the subject permits, and as closely as possible in all
cases where such absolute observance shall be impossible:
1. The merchants of either republic then residing in the other
shall be allowed to remain twelve months, (for those dwelling in
the interior,) and six months, (for those dwelling at the seaports,)
to collect their debts and settle their affairs; during which periods
they shall enjoy the same protection, and be on the same footing, in
all respects, as the citizens or subjects of the most friendly nations;
and, at the expiration thereof, or at any time before, they shall have
full liberty to depart, carrying off all their effects without molesta-
tion or hindrance, conforming therein to the same laws which the
citizens or subjects of the most friendly nations are required to con-
form to.
Treaty of Peace, Friendship, Limits, and Settlement between the
United States and Mexico, concluded February 2, 1848, Article XXII.
For the better security of commerce between the citizens of the
United States and the citizens of the Republic of Costa Rica, it is
agreed, that if at any time any interruption of friendly intercourse,
or any rupture should unfortunately take place between the two high
contracting parties, the citizens of either of the two high contracting
parties who may be within any of the territories of the other, shall,
if residing upon the coast, be allowed six months, and if in the
interior, a whole year to wind up their accounts and dispose of their
property; and a safe-conduct shall be given them to embark at the
port which they themselves shall select; and even in the event of a
rupture, all such citizens of either of the two high contracting parties
who are established in any of the territories of the other, in the
exercise of any trade or special employment, shall have the privilege
of remaining and of continuing such trade and employment therein
without any manner of interruption, in the full enjoyment of their
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
153
A
liberty and property, as long as they behave peaceably, and commit
no offense against the laws; and their goods and effects, of whatever
description they may be, whether in their own custody or intrusted
to individuals or to the State, shall not be liable to seizure or seques-
tration, nor to any other charges or demands than those which may
be made upon the like effects or property belonging to the native
citizens of the country in which such citizens may reside.
Treaty of Friendship, Commerce, and Navigation between the United
States and Costa Rica, concluded July 10 1851, Article XI.
If, by any fatality, (which cannot be expected, and which God
forbid, the two contracting parties should be engaged in a war with
each other, they agree, now for then, that there shall be allowed the
term of six months to the merchants residing on the coasts and in
the ports of each other, and the term of one year to those who dwell
in the interior, to arrange their business and transport their effects
wherever they please, giving to them the safe-conduct necessary for
it, which may serve as a sufficient protection until they arrive at the
designated port. The citizens of all other occupations, who may be
established in the territories of the United States and the Republic
of Bolivia, shall be respected and maintained in the full enjoyment
of their personal liberty and property, unless their particular con-
duct shall cause them to forfeit this protection, which, in considera-
tion of humanity, the contracting parties engage to give them.
Treaty of Peace, Friendship, Commerce, and Navigation concluded be-
tween the United States and Bolivia, May 13, 1858, Article XXVIII.
For the better security of commerce between the citizens of the
United States of America and the citizens of the Republic of Para-
guay, it is agreed that if at any time any interruption of friendly in-
tercourse or any rupture should unfortunately take place between the
two contracting parties, the citizens of either of the said contracting
parties, who may be established in the territories of the other in the
exercise of any trade or special employment, shall have the privilege
of remaining and continuing such trade or employment therein with-
out any manner of interruption, in full enjoyment of their liberty
and property, as long as they behave peaceably and commit no offence
against the laws; and their goods and effects, of whatever descrip-
tion they may be, whether in their own custody or intrusted to indi-
viduals or to the State, shall not be liable to seizure or sequestration,
or to any other charges or demands than those which may be made
upon the like effects or property belonging to native citizens. If,
however, they prefer to leave the country, they shall be allowed the
time they may require to liquidate their accounts and dispose of
their property, and a safe conduct shall be given them to embark at
11067819-11
154
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the ports which they shall themselves select. Consequently, in the
case referred to of a rupture, the public funds of the contracting
States shall never be confiscated, sequestered, or detained.
Treaty of Friendship, Commerce, and Navigation between the United
States and Paraguay, concluded February 4, 1859, Article XIII.
For the better security of commerce between the citizens of the
United States and the citizens of the Republic of Honduras, it is
agreed that if at any time any interruption of friendly intercourse,
or any rupture, should unfortunately take place between the two
high contracting parties, the citizens of either of the two high con-
tracting parties who may be within any of the territories of the other
shall, if residing upon the coast, be allowed six months, and, if in
the interior, a whole year, to wind up their accounts and dispose of
their property; and a safe conduct shall be given them to embark
at the port which they themselves shall select. And even in the
event of a rupture, all such citizens of either of the two high con-
tracting parties who are established in any of the territories of the
other, in the exercise of any trade or special employment, shall have
the privilege of remaining, and of continuing such trade and em-
ployment therein without any manner of interruption, in the full
enjoyment of their liberty and property as long as they behave peace-
ably, and commit no offense against the laws; and their goods and
effects, of whatever description they may be, whether in their own
custody or intrusted to individuals or to the State, shall not be liable
to seizure or sequestration, nor to any other charges or demands
than those which may be made upon the like effects or property be-
longing to the native citizens of the country in which such citizens
may reside.
Treaty of Friendship, Commerce, and Navigation between the United
States and Honduras, concluded July 4, 1864, Article XI.
If by any fatality, which cannot be expected, and which may God
avert, the two contracting parties should be engaged in a war with
each other, they have agreed and do agree, now for then, that there
shall be allowed the term of six months to the merchants residing
on the coasts and in the ports of each other, and the term of one
year to those who dwell in the interior, to arrange their business, and
transport their effects wherever they please, with the safe conduct
necessary to protect them and their property, until they arrive at the
ports designated for their embarkation. And all women and chil-
dren, scholars of every faculty, cultivators of the earth, artisans,
mechanics, manufacturers, and fishermen, unarmed and inhabiting
the unfortified towns, villages, or places, and, in general, all others
whose occupations are for the common subsistence and benefit of
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
155
mankind, shall be allowed to continue their respective employments,
and shall not be molested in their persons, nor shall their houses or
goods be burnt or otherwise destroyed, nor their fields wasted by the
armed force of the belligerent in whose power, by the events of war,
they may happen to fall; but, if it be necessary that anything should
be taken from them for the use of such belligerent, the same shall be
paid for at a reasonable price.
And it is declared that neither the pretence that war dissolves
treaties, nor any other whatever, shall be considered as annulling or
suspending this article; but, on the contrary, that the state of war is
precisely that for which it is provided, and during which its provi-
sions are to be sacredly observed as the most acknowledged obliga-
tions in the law of nations.
Treaty of Commerce and Navigation between the United States and
Italy, concluded February 26, 1871, Article XXI.
:
The effect of War upon the property of enemies generally, is a
subject which requires a twofold consideration, namely: as to
1. The property of enemies within the territory of the enemy.
2. The property of an enemy without the territory of their enemy.
It is with the former of these considerations that we are at present
concerned.
It has not unfrequently been a provision in Treaties that foreign
subjects should be permitted to remain and continue their employ-
ment or business, so long, of course, as it was innocently conducted.
A Treaty of commerce between the North American United States
and the Republic of Chili, which was made in May, 1832, is an ex-
ample of such a permanent protection being afforded to foreigners.
It has, indeed, not unfrequently happened that this permission has
been embodied in the very declaration of War,--several instances are
to be found in former declarations by Great Britain,-and it is the
opinion of a great English lawyer that when this permission is so
announced, aliens are thereby enabled to acquire personal chattels,
and to maintain actions for the recovery of personal rights, in as
ample a manner as alien friends.
The same humane and humanising permission has been made the
subject of the municipal laws of many countries.
In England it was one of the provisions of Magna Charta, that
merchants belonging to the country of the enemy, found in England
at the breaking out of a War, should be attached "without harm
of body or goods,” till the King or his chief justiciary be informed
how our merchants are treated in the country with which we are
at war; and if ours be secure in that country they shall be secure
in ours. This equitable maxim does not appear to have been pecul-
iar to England, but to have been adopted by other northern na-
156
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tions; for instance, the rule,“ quam legem exteri nobis posuere eandem
illis ponemus," prevailed among the Swedes and Goths. But it is
extraordinary that such a provision should have been inserted in a
federal act between the English monarch and his own subjects; “il
est beau," Montesquieu observes, “ que la nation angloise ait fait de
cela un des articles de sa liberté."
This remarkable provision was sustained by a decision of the
English judges in the time of Henry VIII, to the effect that if a
Frenchman came to England before the War neither his person nor
his goods should be seized. But this provision is confined to the
effects of alien merchants domiciled within the realm before the be-
ginning of the war. The Statute of Staples, 27 Edward III, st. 2,
carries the liberality of this provision still further, for by it foreign
merchants residing in England when War broke out, were to have
convenient warning of forty days by proclamation to depart the
realm with their goods; and if by reason of accident they should
be prevented from doing so, they were allowed forty days more to
pass with their merchandise, with liberty to sell the same. Neverthe-
less, it was, until lately, the uniform custom of Great Britain to
seize as prizes all vessels and cargoes of her enemies found afloat
in her ports at the commencement of war. Her practice in the
matter of embargoes has been already mentioned. In the articles
respecting the Droits of Admiralty in 1665, there is a very formal
recognition of the rights of the Crown to all cargoes and vessels
seized before hostilities.
Spain, by a Decree of February, 1829, made Cadiz a free port, and
declared that, in the event of War, foreigners who had established
themselves there for the purposes of commerce, should be allowed
a proper time to withdraw, and that their property should not be
subject to Sequestration or Reprisals.
Charles V of France, by an ordinance dated about a century after
the English Magna Charta, decreed that foreign merchants resi-
dent in France at the time of a declaration of War with their coun-
try, should have nothing to fear, but be allowed to depart freely with
their effects. During the recent war between France and Prussia
Germans were expelled from France.
The United States of North America, by an Act of their Con-
gress, on the 6th of July, 1798, authorized the President, in case of
War, to direct the conduct to be observed towards subjects of the
hostile nation, being aliens and within the United States, and in
what cases, and upon what security, their residence should be per-
mitted; and it declared, in reference to those who were to depart,
that they should be allowed such reasonable time as might be con-
sistent with the public safety, and according to the dictates of hu-
manity and national hospitality, for the recovery, disposal, and re-
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
157
moval of their goods and effects, and for their departure. Neverthe-
less, the Supreme Court of the United States has, in a very elaborate
and important decision, declared that no doubt can now be enter-
tained respecting the right of every Government to take the per-
sons and confiscate the property of the enemy wherever found; that
the mitigations of this rigid rule, which the humane and wise pol-
icy of modern times has introduced into modern practice, may more
or less affect the exercise of this right, but can not impair the right
itself. That right, the American judges say, remains undiminished,
and when the sovereign authority shall choose to bring it into oper-
ation, the judicial department must give effect to its will. Mr.
Chancellor Kent remarks that, “though this decision established the
right contrary to much of modern authority and practice, yet a great
point was gained over the rigour and violence of the ancient doc-
trine, by making the exercise of the right to depend upon a special
Act of Congress."
Phillimore, vol. III, pp. 130–134; The Emulous, 1 Gallison, 563; Kent,
vol. 1, p. 59.
Debts.
The Right of confiscating the debts of the enemy is a corollary to
the right of confiscating his property.
The strict Right—the summum jus-by the Reason of the Thing,
and by the opinion of every eminent jurist, remains unquestioned.
“I take upon me to say" (observes Mr. Justice Story), “ that no
jurist of reputation can be found who has denied the right of con-
fiscation of enemies' debts."
Bynkershoek, writing in 1737, observes: “Sed profecto videtur
esse jus commune, ut et actiones publicentur, ex eâdem nempe ratione
quâ corporalia quaelibet-actiones utique sive credita non minus Jure
Gentium sunt in dominio nostro, quam alia bona, eccur igitur in
his jus belli sequamur, in illis non sequamur? et cum nihil succurrat,
quod distinctioni idoneae locum praebere possit, etiam sola ratio jus
commune defendit."
The article of the English Magna Charta, already referred to,
does not protect the property or the debts of foreign enemies with-
out the realm. And it appears to be the ancient and well-estab-
lished rule of the English Common Law, as laid down in the old
Year Books, and confirmed by the judgment of the Court of Ex-
chequer, that all debts, all, what are by English Law tech-
nically and barbarously called, choses in action, belonging to an
enemy are forfeitable to the Crown; albeit this power is, as Lord
Alvanley, the Master of the Rolls, observed, very rarely executed.
This doctrine has been confirmed by the judgment of the Supreme
Court in the United States of North America, in which, as Dr.
158
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Story says, it was explicitly asserted by some, reluctantly admitted
by some, but denied by none of the judges.
One, however, of the English Common Law Tribunals has arrived
at a different conclusion, and pronounced that, according to modern
International Law, the confiscation of private debts is illegal and
invalid. The case in which this law was laid down, and the sub-
ject generally, will be considered when the effect of the restoration
of peace upon the possessors of property is discussed.
So much as to the strict right; but the rigour of this right has
been mitigated by the humane and wise practice of nations, for
nearly a century and a half, which has forborne from the seizure
of debts and credits, and has been accompanied by a principle, which
has obtained universally, of allowing rights to debts and actions to
revive with the restoration of peace. We have already considered,
in the preceding chapter on Embargo, the manner in which this
extreme Right has been mitigated in practice; the memorable case
of the Silesian Loan in 1752, did not, Dr. Story observes, in the
slightest degree intimate that International Law prohibited a Sov-
ereign from confiscating debts due to his enemies, even where the
debts were due from the nation, though it contained a very able
statement of the injustice in that particular case; and this memo-
rial admitted that when Sovereigns or States borrowed money from
foreigners, it was very commonly expressed in the contract that it
should not be seized as reprisals or in case of War; various other
Treaties have subsequently been entered into containing a similar
stipulation.
We have been considering the question of private debts. The sub-
ject of debts due from the State, in its corporate capacity, to indi-
viduals,-money invested in the Public Funds and the like,-has
been already discussed. The opinion of Vattel upon this point is
thus emphatically expressed in the passage already cited: “L'Etat
ne touche pas même aux sommes qu'il doit aux ennemis; partout,
les fonds confies au public sont exempts de confiscation et de saisie,
en cas de guerre.” Emerigon and Martens are of the same opinion.
Indeed, it is one which now may happily be said to have no gain-
sayers.
Phillimore, vol. III, pp. 145–148; Brown v. U. S., 8 Cranch, 143; Atty.
Gen. v. Weeden, Parker, 267; Furtado v. Rogers, 3 Bos. and Pull.,
191; Ware v. Hylton, 3 Dallas, 199.
Real estate.
With respect to immovable property,
lands or houses of the en-
emy,—the general rule of civilised States appears to be, that this
kind of property is never confiscated, upon the principle, that the
Sovereign, by permitting the proprietors to purchase and possess
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
159
such property, has incorporated them amongst his subjects. In
cases, however, where the income of the estate would otherwise be
sent out of the country to augment the resources either of the pri-
vate or public wealth of the enemy, it may be sequestrated during
the pendency of the War, without any breach of international usage.
We shall have occasion hereafter to consider the protection usu-
ally afforded by an invading or conquering State to the landed
property of foreigners in the invaded or conquered territory.
Before this subject of enemies' property be dismissed, it should be
observed, that if it have been wrongfully seized before the War, it
must be restored. In the Report of the English Law Officers (1753),
in answer to the Prussian Memorial, it was stated that French ships
taken before the War of 1741, were restored by the Admiralty Court,
both during the heat of the conflict and afterwards, to the French
owners.
Such property may not be confiscated, because, but for the wrong
done, it would not have been within the territory of the belliger-
ents. Mr. Chancellor Kent cites the Santa Cruz as an instance that
in England such property is subject to the rules of vindictive retali-
ation, but this seems to be a mistake. Lord Stowell is not speak-
ing of property wrongfully taken, but of property lawfully seized
by Embargo, when he says, “at the breaking out of War it is the
constant practice of this country to condemn property seized before
the War, if the enemy condemns, and to restore if the enemy re-
stores."
The restoration in these cases is not matter of right, but of ex-
pediency. The English Law Officers, in the Memorial which has
been just mentioned, were speaking of restoration in cases where
wrong had been done.
Phillimore, vol. III, pp. 148–150 ; The Santa Cruz, 1 C. Rob. 64.
Confiscation of public debts.
The question as to the right to confiscate the Public Debts of a
State has been already discussed, ånd, generally speaking, the prin-
ciples relating to this subject are the same as those which relate to the
confiscation of Private Debts. It has been stated, in an earlier part
of this volume, that the right of confiscating the private debts of an
enemy is a corollary to the right of confiscating his property. That,
however rigorous and inexpedient the application of this summum
jus may be, it is nevertheless competent to an enemy to exercise it.
That this position is supported by the reason of the thing, and by the
authority of jurists and judges on the Continent of Europe and in
the United States of North America.
Phillimore , vol. III, p. 853.
160
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Confiscation of private debts.
Nevertheless, in 1817, the English Court of King's Bench made a
decision wholly at variance with these authorities. A Dane, who had
been for many years naturalised by Act of Parliament, and resided
in this country, brought an action in the English Court against a
Danish subject, who had been arrested and holden to bail in this
country. The debt had been contracted in England, at a time when
the Danish debtor was resident in Denmark, having a house of trade
established there, and when Denmark and England were at peace
with each other. Proceeding had been instituted in the Courts of
Denmark for the recovery of this debt; while these were pending, in
1807, a war broke out between England and Denmark, and an ordi-
nance was therefore made by the latter, dated 16th August, 1807,
whereby all ships, goods, monies, and money's worth were declared
to be sequestrated and detained; and by another ordinance, dated 9th
September, 1807, all persons were commanded, within three days
after the publication thereof, to transmit an account of the debts due
to English subjects, of whatsoever nature or quality they might be,
the whole of which were directed to be paid into the Danish Treas-
ury; and in case of concealment, the person so offending was to be
proceeded against by the officers of the Exchequer; and Commission-
ers were appointed to receive the sequestrated debts. To them the
debt in this case had been paid, and it was contended, for the de-
fendant, that it was a valid discharge according to International
Law. The plaintiff, on the other hand, contended, -(1.) That the
ordinance was contrary to International Law. (2.) That it did not
appear to have been a compulsory payment under the ordinance.
(3.) That the defendant, being a Danish subject, paid to himself in
paying to the Government, because every subject of a State is
deemed to be a party to the laws of his own Government.
The English Court, presided over by Lord Ellenborough, pro-
nounced in favour of the plaintiff, and against the validity of the
defence which had been set up. The Court observed, indeed, that
the ordinance in question had not been followed up by any practical
measure of compulsion upon the subjects of Denmark; that there had
been nothing in the nature of process against the defendant to en-
force the payment of this particular debt-nothing analogous to the
seizure or condemnation of corporeal things taken in the time of
war; and that, though the Sequestration Commissioners were in-
formed of the debt in 1807, the defendant did not pay the debt till
1812. Yet the Court, in fact, decided upon the broad ground that the
Danish Ordinance was a violation of the principles of International
Law. The principal grounds of this decision appear to have been :-
(1.) The language of Vattel, in which he speaks of the security of
enemy's money in the public funds, the reason of which, the Court
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
161
said, extended equally to debts owing to an individual in the course
of commerce; it was said that Vattel, in laying down that a Sover-
eign might, at least, prohibit his subjects from paying debts pendente
bello, intimated a doubt as to the right of confiscating debts; and
that the right was properly limited to its operation in personam,
upon the subject of the State, or upon his property within the reach
and control of that State. (2.) That the language of Vattel with
respect to the practice of Europe as to not confiscating debts, had be-
come so general that the confiscating State must be holden to violate
the public faith. (3.) That, in spite of what is said in Treaties as to
the Law of England, there was no case in the books in which debts
had been so confiscated. (4.) That even in the time of Grotius doubts
had been entertained as to the lawfulness of confiscating debts; that
he expresses no opinon in favour of such a course, but rather in-
clined the other way. (5.) That the reasoning of Puffendorf, in the
22nd section of the sixth chapter of the eighth book of his Treatise
“De Jure Naturali et Gentium," was opposed to such a right.
(6.) Lastly and chiefly, the Court said that it was admitted that,
notwithstanding all the violent measures to which recourse had been
had during the extraordinary warfare that characterized those times,
the Ordinance of the Court of Denmark stood single and alone, not
supported by any precedent, nor adopted as an example in any other
State. They therefore gave judgment for the plaintiff
.
Phillimore, vol. III, pp. 853–855; Wolff v. Oxholm, 6 M. & S. 100.
When hostilities have commenced, the first objects that naturally
present themselves for detention and capture are the persons and
property of the enemy found within the territory on the breaking out
of the war. According to strict authority, a state has a right to
deal as an enemy with persons and property so found within its
power, and to confiscate the property and detain the persons as
prisoners of war. No one, says Bynkershoek, ever required that
notice should be given to the subjects of the enemy to withdraw.
their property, or it would be forfeited. The practice of nations is
to appropriate it at once, without notice, if there be no special con-
vention to the contrary. But though Bynkershoek lays down this,
as well as other rules of war, with great harshness and severity, he
mentions several instances, arising in the seventeenth, and one as
early as the fifteenth century, of stipulations in treaties, allowing
foreign subjects a reasonable time after the war breaks out to re-
cover and dispose of their effects, or, to withdraw them. Such stipu-
lations have now become an established formula in commercial
treaties. Emerigon considers such treaties as an affirmance of com-
mon right, or the public law of Europe, and the general rule laid
162
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
down by some of the latter publicists is in conformity with that pro-
vision. The sovereign who declares war, says Vattel, can neither de-
tain those subjects of the enemy who are in his dominions at the
time of the declaration of war, nor their effects. They came into
the country under the sanction of public faith. By permitting them
to enter his territories, and continue there, the sovereign tacitly
promised them protection and security for their return.
He is,
therefore, to allow them a reasonable time to retire with their effects,
and if they stay beyond the time, he has a right to treat them as
disarmed enemies, unless detained by sickness or other insurmount-
able necessity, and then they are to be allowed a further time. It
has been frequently provided by treaty that foreign subjects should
be permitted to remain, and continue their business, notwithstand-
ing a rupture between the governments, so long as they conducted
innocently; and when there was no such treaty, such a liberal
permission has been often announced in the very declaration of
war. Sir Michael Foster mentions several instances of such declara-
tions 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 ás full a manner as
alien friends.
Besides those stipulations in treaties, which have softened the
rigors of war by the civilizing spirit of commerce, many govern-
ments have made special provision, in their own laws and ordi-
nances, for the security of the persons and property of enemy's
subjects, found in the country at the commencement of war.
Kent, vol. 1, pp. 68–70.
Rule in United States.
It was provided by Magna Charta that, upon the breaking out
of war, foreign merchants found in England, and belonging to the
country of the enemy, should be attached, “ without harm of body
or goods," until it should be known how English merchants were
treated by the enemy; "and if our merchants," said the charter,
“be safe and well treated there, theirs shall be likewise with us."
It had been deemed extraordinary that such a liberal provision
should have found a place in a treaty between a feudal king and
his barons; and Montesquieu was struck with admiration at the fact
that a protection of that kind should have been made one of the
articles of English liberty. But this provision was confined to the
effects of alien merchants who were within the realm at the com-
mencement of the war, and it was understood to be confined to the
case of merchants domiciled there. It was accompanied, also, with
one very ominous qualification; and it was at least equalled, if not
greatly excelled, by an ordinance of Charles V. of France a century
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
163
afterwards, which declared that foreign merchants who should be
in France at the time of the declaration of war should have nothing
to fear, for they should have liberty to depart freely with their
effects. The spirit of the provision in Magna Charta was sustained
by a resolution of the judges, in the time of Henry VIII., when they
resolved, that if a Frechman came to England before the war,
neither his person nor goods should be seized. The statute of staples,
of 27 Edw. III. c. 17, made a still more liberal and precise enact-
ment in favor of foreign merchants residing in England, when
war commenced between their prince and the King of England.
They were to have convenient warning of forty days, by proclama-
tion, to depart the realm with their goods; and if they could not do
it within that time, by reason of accident, they were to have forly
days more to pass with their merchandise, and with liberty, in the
meantime, to sell the same. The act of Congress of the 6th of July,
1798, c. 73, was dictated by the same humane and enlightened
policy. It authorized the President, in case of war, to direct the
conduct to be observed towards subjects of the hostile nation, being
aliens, and within the United States, and in what cases, and upon
what security, their residence should be permitted; and it declared,
in reference to those who were to depart, that they should be allowed
such reasonable time as might be consistent with the public safety,
and according to the dictates of humanity and national hospitality,
" for the recovery, disposal, and removal of their goods and effects,
and for their departure."
But however strong the current of authority in favor of the
modern and milder construction of the rule of national law on this
subject, the point seems to be no longer open for discussion in this
country; and it has become definitively settled, in favor of the
ancient and sterner rule, by the Supreme Court of the United States.
Kent, vol. 1, pp. 70, 71.
Commercial nations have always considerable property in the
possession of their neighbors; and, when war breaks out, the question,
what shall be done with enemy's property found in the country, is
one rather of policy than of law, and is one properly addressed to
the consideration of the legislature, and not to the courts of law.
The strict right of confiscation of that species of property existed
in Congress, and without a legislative act authorizing its confiscation
it could not be judicially condemned; and the act of Congress of
1812, declaring war against Great Britain, was not such an act.
Until some statute directly applying to the subject be passed, the
property would continue under the protection of the law, and might
be claimed by the British owner at the restoration of peace.
Kent, vol. 1, p. 72.
164
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
We may, therefore, lay it down as a principle of public law, so
far as the same is understood and declared by the highest judicial
authorities in this country, that it rests in the discretion of the legis-
lature of the Union, by a special law for that purpose, to confiscate
debts contracted by our citizens, and due to the enemy; but, as it is
asserted by the same authority, this right is contrary to universal
practice, and it may, therefore, well be considered as a naked and
impolitic right, condemned by the enlightened conscience and judg-
ment of modern times.
Kent, vol. 1, p. 77.
Property wrongfully taken before the war.
If property should have been wrongfully taken by the state before
the war, and be in the country at the opening of the war, such prop-
erty cannot be seized, but must be restored; because to confiscate that
species of enemy's property would be for the government to take
advantage of its own wrong. The celebrated report of the English
law offices of the crown, 1753, in answer to the Prussian Memorial,
stated that French ships taken before the war of 1741 were, during
the heat of the war with France, as well as afterwards, restored by
sentences of the admiralty courts to the French owners.1 No such
property was ever attempted to be confiscated; for had it not been
for the wrong done, the property would not have been within the
king's dominions. And yet even such property is considered to be
subject to the rule of vindictive retaliation; and Sir William Scott
observed, in the case of the Santa Cruz that it was the constant
practice of England to condemn property seized before the war, if
the enemy condemns, and to restore if the enemy restores.
Kent, vol. 1, p. 78; The Santa Cruz, 1 C. Rob. 50.
1 The case of Silesia [n] loan contains, in the discussions between the Prussian and
British courts, in 1752, a memorable exposition of the law of nations on the subject of
belligerent rights and duties. The report of the high and distinguished law officers of
the crown, in answer to the Prussian Memorial, made in 1753, was declared by such emi-
nent writers as Vattel and Montesquieu to be an excellent and unanswerable tract on the
law of nations. See the substance of the discussion in Wheaton's History of the Law
of Nations, ed. N. Y. 1845, 206–217, and the Report at large Collectanea Juridica, i. 95.
The case is worthy of special notice, not only for the authority of the work, but for the
recognition of the sanctity of private debts and contracts, in opposition to the pretensions
of the rights of war and conquest. In that case, a loan of money was made by British
creditors to the Emperor of Germany, in 1735, and for the better security of the payment
of the loan, with interest, he mortgaged his revenues of the Duchies of Silesia ; and
when Silesia was conquered by Prussia, the Empress Queen, who had succeeded to the
sorereignty of the country, before its conquest, ceded the Duchies to the King of Prussia,
upon condition that the king should be responsible for the debt; and he assumed the
payment of it. The king afterwards seized the revenues, by way of reprisal and in-
demnity against losses by British cruisers, under lawful capture and condemnation by
the laws of war. The Report showed, unanswerably, as Montesquieu admitted, that the
King of Prussia could not lawfully seize the mortgaged revenues or debts, by way of
reprisal, and that he was bound by the law of nations, and every principle of justice, to
pay the British creditors. The King of Prussia, by treaty in 1756, agreed to take off the
sequestration laid on the Silesian debt, and pay the capital and interest due to the
British creditors.
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
165
1
As no declaration, or other notice to the enemy, of the existence of
war, is necessary, in order to legalize hostilities, and as the property
of the enemy is, in general, liable to seizure and confiscation as prize
of war, it would seem to follow as a consequence, that the property
belonging to him and found within the territory of the belligerent
State at the commencement of hostilities, is liable to the same fate
with his other property wheresoever situated. But there is a great
diversity of opinions upon this subject among institutional writers;
and the tendency of modern usage between nations seems to be, to
exempt such property from the operations of war.
With the Romans, who considered it lawful to enslave, or even
to kill, an enemy found within the territory of the State on the
breaking out of war, it would very naturally follow that his property
found in the same situation would become the spoil of the first taker.
Grotius, whose great work on the laws of war and peace appeared in
1625, adopts as the basis of his opinion upon this question the rules
of the Roman law, but qualifies them by the more humane sentiments
which began to prevail in the intercourse of mankind at the time he
wrote. In respect to debts due to private persons, he considers the
right to demand them as suspended only during the war, and reviv-
ing with the peace. Bynkershoek, who wrote about the year 1737,
adopts the same rules, and follows them to all their consequences.
He holds that, as no declaration of war to the enemy is necessary, no
notice is necessary to legalize the capture of his property, unless he
has, by express compact, reserved the right to withdraw it on the
breaking out of hostilities. This rule he extends to things in action,
as debts and credits, as well as to things in possession. He adduces,
in confirmation of this doctrine, a variety of examples from the con-
duct of different States, embracing a period of something more than
a century, beginning in the year 1556 and ending in 1657. But he
acknowledges that the right had been questioned, and especially
by the States-General of Holland; and he adduces no precedent of
its exercise later than the year 1667, seventy years before his pub-
lication. Against the ancient examples cited by him, there is the
negative usage of the subsequent period of nearly a century and a
half previous to the wars of the French Revolution. During all
this period, the only exception to be found is the case of the Silesian
loan, in 1753. In the argument of the English civilians against the
reprisals made by the King of Prussia in that case, on account of
the capture of Prussian vessels by the cruisers of Great Britain, it
is stated that “it would not be easy to find an instance where a prince
had thought fit to make reprisals upon a debt due from himself to
private men. There is a confidence that this will not be done. A
166
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
private man lends money to a prince upon an engagement of honor;
because a prince cannot be compelled, like other men, by a court of
justice. So scrupulously did England and France adhere to this
public faith, that even during the war," (alluding to the war termi-
nated by the peace of Aix-la-Chapelle, “they suffered no in
to be made whether any part of the public debt was due to the sub-
jects of the enemy, though it is certain many English had money in
the French funds, and many French had money in ours.
Wheaton, pp. 378, 379; Grotius, lib. iii. cap. 20, sec. 16.
Vattel, who wrote about twenty years after Bynkershoek, after
laying down the general principle, that the property of the enemy
is liable to seizure and confiscation, qualifies it by the exception of
real property (les immeubles) held by the enemy's subjects within
the belligerent State, which having been acquired by the consent of
the sovereign, is to be considered as on the same footing with the
property of his own subjects, and not liable to confiscation jure
belli. But he adds that the rents and profits may be sequestrated, in
order to prevent their being remitted to the enemy. As to debts, and
other things in action, he holds that war gives the same right to
them as to the other property belonging to the enemy. He then
quotes the example referred to by Grotius, of the hundred talents
due by the Thebans to the Thessalians, of which Alexander had be-
come master by right of conquest, but which he remitted to the
Thessalians as an act of favor: and proceeds to state, “that the
sovereign has naturally the same right over what his subjects may
be indebted to the enemy; therefore he may confiscate debts of this
nature, if the term of payment happen in time of war, or at least he
may prohibit his subjects from paying while the war lasts. But at
present, the advantage and safety of commerce have induced all the
sovereigns of Europe to relax from this rigor. And as this custom
has been generally received, he who should act contrary to it would
injure the public faith; since foreigners have confided in his subjects
only in the firm persuasion that the general usage would be observed.
The State does not even touch the sums which it owes to the enemy;
everywhere, in case of war, the funds confided to the public, are
exempt from seizure and confiscation.” In another passage, Vattel
gives the reason of this exemption. “In reprisals, the property of
subjects is seized, as well as that belonging to the sovereign or State.
Every thing which belongs to the nation is liable to reprisals as soon
as it can be seized, provided it be not a deposit confided to the public
faith: this deposit, being found in our hands only on account of
that confidence which the proprietor has reposed in our good faith,
ought to be respected even in case of open war. Such is the usage in
France, in England, and elsewhere, in respect to money placed by

ENEMY PROPERTY IN BELLIGERENT TERRITORY.
167
foreigners in the public funds.” Again he says, “The sovereign de-
claring war can neither detain those subjects of the enemy who were
within his dominions at the time of the declaration, nor their effects.
They came into this country on the public faith; by permitting them
to enter his territories, and continue there, he has tacitly promised
them liberty and perfect security for their return. He ought, then,
to allow them a reasonable time to retire with their effects; and if
they remain beyond the time fixed, he may treat them as enemies,
but only as enemies disarmed."
Wheaton, pp. 380, 381; Vattel, liv. ii. ch. 18, sec. 344; liv. iii. ch. 4,
sec. 63; ch. 5, secs. 73-77.
It appears, then, to be the modern rule of international usage, that
property of the enemy found within the territory of the belligerent
State, or debts due to his subjects by the government or individuals,
at the commencement of hostilities, are not liable to be seized and
confiscated as prize of war.' This rule is frequently enforced by
treaty stipulations, but unless it be thus enforced, it cannot be consid-
ered as an inflexible, though an established rule. “The rule," as it
has been beautifully observed, “like other precepts of morality, of
humanity, and even of wisdom, is addressed to the judgment of the
sovereign-it is a guide which he follows or abandons at his will;
and although it cannot be disregarded by him without obliquy,
yet it may be disregarded. It is not an immutable rule of law, but
depends on political considerations, which may continually vary.” 1
Among these considerations is the conduct observed by the enemy.
If he confiscates property found within his territory, or debts due
to our subjects on the breaking out of war, it would certainly be just,
and it may, under certain circumstances, be politic, to retort upon
his subjects by a similar proceeding. This principle of reciprocity
operates in many cases of international law. It is stated by Sir W.
Scott to be the constant practice of Great Britain, on the breaking
out of war, to condemn property seized before the war if the enemy
condemns, and to restore if the enemy restores. It is,' says he, “a
principle sanctioned by that great foundation of the law of England,
Magna Charta, itself, which prescribes that, at the commencement of
a war, the enemy's merchants shall be kept and treated as our own
merchants are kept and treated in their country.” And it is also
stated in the report of the English civilians, in 1753, before referred
to, in order to enforce their argument that the King of Prussia could
not justly extend his reprisals to the Silesian loan, that “French
ships and effects, wrongfully taken, after the Spanish war, and be-
fore the French war, have, during the heat of the war with France,
46
" 2
1 Marshall, C. J., in Brown v. U. S., 3 Cranch, 110.
2 The Santa Cruz, 1 C. Rob., 64.

168 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
and since, been restored by sentence of your Majesty's courts to the
French owners. No such ships or effects ever were attempted to be
confiscated as enemy's property, here, during the war; because, had
it not been for the wrong first done, these effects would not have been
in your Majesty's dominions."
The ancient law of England seems thus to have surpassed in lib-
erality its modern practice. In the recent maritime wars commenced
by that country, it has been the constant usage to seize and con-
demn as droits of admiralty the property of the enemy found in its
ports at the breaking out of hostilities; and this practice does not
appear to have been influenced by the corresponding conduct of the
enemy in that respect. As has been observed by an English writer,
commenting on the judgment of Sir W. Scott in the case of
the Dutch ships, “there seems something of subtlety in the distinc-
tion between the virtual and the actual declaration of hostilities, and
in the device of giving to the actual declaration a retrospective ef-
ficacy, in order to cover the defect of the virtual declaration previ-
ously implied.” 1
Wheaton, pp. 381, 382.
Constitution of United States.
The modern rule, then, would seem to be, that tangible property be-
longing to an enemy, and found in the country at the commence-
ment of war, ought not to be immediately confiscated; and in almost
every commercial treaty an article is inserted, stipulating for the
right to withdraw such property.
This rule appeared to be totally incompatible with the idea, that
war does, of itself, vest the property in the belligerent government.
It might be considered as the opinion of all who have written on the
jus belli, that war gives the right to confiscate, but does not itself con-
fiscate, the property of the enemy; and the rules laid down by these
writers went in the exercise of this right.
The Constitution of the United States was framed at a time when
this rule, introduced by commerce in favor of moderation and hu-
manity, was received throughout the civilized world.
In expounding that Constitution, a construction ought not lightly
to be admitted, which would give tola declaration of war an effect in
this country it did not possess elsewhere, and which would fetter the
exercise of that entire discretion respecting enemy's property, which
might enable the government to apply to the eneing the rule which
he applied to us.
This general reasoning would be found to be much strengthened
by the words of the Constitution itself—That the declaration of war
had only the effect of placing the two nations in a state of hostility,
1 Chitty's Law of Nations, ch. 3, p. 80.
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
169
of producing a state of war, of giving those rights which war con-
fers; but not of operating, by its own force, any of those results
such as a transfer of property-which are usually produced by ul-
terior measures of government, was fairly deducible from the enu-
meration of powers which accompanied that of declaring war:-
Congress shall have power to declare war, grant letters of marque
and reprisal and make rules concerning captures on land and water."
Wheaton, p. 384.
66
The Supreme Court of the United States, in Brown v. United
States, decided primarily and unequivocally, that, by the law of
nations, the right exists to seize and confiscate any property of an
enemy found in the country on the happening of war. On that point
the court was unanimous. The case is so treated by all the American
commentators. Kent says (i. 59) that “the point seems no longer
open for discussion in this country, and has become definitely settled
in favor of the ancient and sterner rule." Halleck (p. 365) says,
“The Supreme Court of the United States has decided that the right,
stricti juris, still exists, as a settled and undoubted right of war,
recognized by the law of nations." Woolsey ($118) says, “The Su-
preme Court of the United States has decided, in accordance with the
body of earlier and later text-writers, that by strict right such prop-
erty is confiscable.”
Wheaton, p. 387, Note 156.
Debts- British law.
În respect to debts due to an enemy, previously to the commence-
ment of hostilities, the law of Great Britain pursues a policy of a
more liberal, or at least of a wiser character, than in respect to droits
of admiralty. A maritime power which has an overwhelming naval
superiority, may have an interest, or may suppose it has an interest,
in asserting the right of confiscating enemy's property, seized before
an actual declaration of war; but a nation which, by the extent of its
capital, must generally be the creditor of every other commercial
country, can certainly have no interest in confiscating debts due to an
enemy, since that enemy might, in almost every instance, retaliate
with much more injurious effect. Hence, though the prerogative of
confiscating such debts, and compelling their payment to the crown,
still theoretically exists, it is seldom or ever practically exerted.
Wheaton, pp. 388–390.
On the commencement of hostilities between France and Great
Britain, in 1793, the former power sequestrated the debts and other
property belonging to the subjects of her enemy, which decree was
retaliated by a countervailing measure on the part of the British
110678—1912
170
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
government. By the additional articles to the treaty of peace be-
tween the two powers, concluded at Paris, in April, 1814, the seques-
trations were removed on both sides, and commissaries were ap-
pointed to liquidate the claims of British subjects for the value of
their property unduly confiscated by the French authorities, and also
for the total or partial loss of the debts due to them, or other prop-
erty unduly retained under sequestration, subsequently to 1792. The
engagement thus extorted from France may be considered as a severe
application of the rights of conquest to a fallen enemy, rather than
a measure of even-handed justice; since it does not appear that
French property, seized in the ports of Great Britain and at sea, in
anticipation of hostilities, and subsequently condemned as droits of
admiralty, was restored to the original owners under this treaty on
the return of peace between the two countries.
Wheaton, pp. 390, 391.
So, also, on the rupture between Great Britain and Denmark, in
1807, the Danish ships and other property, which had been seized in
the British ports and on the high seas, before the actual declaration
of hostilities, were condemned as droits of admiralty by the retro-
spective operation of the declaration. The Danish government issued
an ordinance retaliating this seizure, by sequestrating all debts due
from Danish to British subjects, and causing them to be paid into
the Danish royal treasury. The English Court of King's Bench de-
termined that this ordinance was not a legal defence to a suit in Eng-
land for such a debt, not being conformable to the usage of nations;
the text-writers having condemned the practice, and no instance hav-
ing occurred of the exercise of the right, except the ordinance in
question, for upwards of a century.
Wheaton, p. 391, citing Maule & Selwyn's Rep. VI. 92, Wolff v. Oxholm.
Private debts and debts due by State.
Confiscation of Private Debts due to Enemies. Modern writers
seem to agree that no distinction in principle exists between such
debts and other private property on land. (Ships and their cargoes,
and coinmercial property at sea, have always been differently treated,
for reasons given in note 171, infra, Distinction between enemy's
Property at Sea and on Land.) Persons who either leave their prop-
erty in another country, or give credit to a foreign citizen, act on
the understanding that the law of nations will be followed, what-
ever that may be. To argue, therefore, that the rule under the law
of nations must be to abstain from confiscation because the debt or
property is left in the foreign country on the public faith of the
country, seems to be a petitio principii. Kent (i. 65) states the law
of nations to be, at the time of his writing, that it rests in the
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
171
discretion of the legislative authority of a nation to confiscate
private debts or not, at its discretion; but, as the exercise of the right
is contrary to universal practice, it may “well be considered as a
wicked and impolitic right, condemned by the enlightened conscience
of modern times.” Wildman (ii. 10, 11) speaks of the old rule as
more or less mitigated by the wise and humane practice of modern
times. Phillimore (iii. 132 et seq.) says, “The strict right—the
summum jus,—by the reason of the thing and the opinion of every
eminent jurist, remains unquestioned,” and adds, that “the rigor
of this right has been mitigated by the wise and humane practice of
nations for nearly a century and a half.” Manning (p. 129) says
such debts “may be confiscated by the rigorous application of the
rights of war, but the exercise of this right has been discontinued
in modern warfare.” Woolsey ($118) says, “ from the strict theory
of hostile relations laid down above, it would follow ... that en-
emy's property within the country, at the breaking-out of war, was
liable to confiscation. This principle would also apply to debts due
to them at that time.” Halleck (pp. 362–9) agrees with Kent, that
the law of nations in this respect cannot be considered as changed,
so as to prohibit the confiscation. So, also, Pfeiffer, Kriegserob.
$14. Story, in his opinion in Brown v. United States (Cranch, viii.
140), says, “I take upon me to say, that no jurist of reputation can
be found who has denied the right of confiscation of enemy's debts."
Heffter (Europ. Völker. $140) seems to assert a general right to
seize and confiscate, but contends for a moral principle that should
govern nations, which, he thinks, permits the sovereign to seize and
use, or convert into money and put in his treasury, enemy's property
or debts found in his dominions; but requires him to account for it,
in the terms of the treaty of peace, as something of which he has
had a lawful use, but the absolute title to which should not be lost
by the mere fact of war. It is true, that Alexander Hamilton, in his
celebrated Camillus Letters, in defence of Jay's Treaty (Works, vii.
letters 18, 19, 20), argues that the public faith is pledged to the for-
eigner who leaves his property or debt in the country; but it should
be remembered that the scope of Hamilton's argument was to justify
a treaty which recognized the validity of private debts not actually
confiscated, and not to question the abstract right of a nation, under
the international law, to confiscate such debts, during the war, at
its discretion.
The Declaration of Paris of 1856 does not touch this subject. In a
great many treaties made by the United States, the confiscation of
private debts is prohibited; and, in one,—that with Great Britain,
1794, art. 10,-it is pronounced“ unjust and impolitic."
A distinction lies between private debts and debts due by the
State itself to a person becoming its enemy by war.
Vattel says
172
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
99
>
that "L'état ne touche pas même aux sommes qu'il doit aux ennemis;
partout, les fonds confiés au public sont exempt de confiscation et de
saisie en cas de guerre." See also Emérigon, Des Assurances, tit. i.
p. 567, and Martens, liv. viii. ch. 11, § 5, to the same effect. Philli-
more (iii. 135) speaks of the doctrine of the immunity of public
debts as one“ which now may happily be said to have no gainsayers."
Manning says such debts are “invariably regarded during war;
and considers them as “intrusted to the public faith," and not liable
to be touched “ without a violation of public faith.” Woolsey says
(Introd. $ 118) that “all modern authorities agree, we believe, that
they ought to be safe and inviolable. To confiscate either principal
or interest would be a breach of good faith, injure the credit of a
nation, and provoke retaliation on persons and all private property.
So Wildman, ii. 10, 11. Among the extremest measures between
Great Britain and France, during the wars of Napoleon, public debts
were never confiscated. Kent (i. 63, 64) considers the impolicy of
such confiscation to be so clear, and its bad faith so palpable, as to
remove it from the permitted acts of war.
The distinction seems to be, that a loan to a State is in the nature
of a permanent investment invited by the State itself; and the im-
plication is fairly to be made by the foreign creditor that he is not
to lose it by war. The whole turns on this question,--what has the
foreign creditor a right to assume will be the result in case of war?
The policy of a State to have its loans open to people of all nations,
as investments secure against the chances of war, is so obvious and
paramount as not only to settle the practice, but to give countenance
to the assumption of the creditor that the faith of the State was im-
pliedly pledged to him to that effect. During the civil war in the
United States, the Congress of the rebel confederacy confiscated all
property, movable or immovable, and all rights, credits, and inter-
ests held within the confederacy by or for any alien enemy, except
public stocks and securities. (Act 6th August, 1861; McPherson's
Hist. of Rebellion, 203.) Earl Russell remonstrated against this
proceeding as discountenanced, if not disallowed, by the modern law
of nations, and as especially objectionable in civil wars. Parliam.
Papers, 1862; Correspondence relating to the Civil War, 108. Abdy's
Kent, 211, 212. See note 156, ante, Enemy's Property found in the
Country on the Breaking-out of War; and note 169, infra, on Con-
quest and Belligerent Occupation.
Wheaton, pp. 391–393, Note 157.
War is the exercise of force by bodies politic, for the purpose of
coercion. Modern civilization has recognized certain modes of coer-
cion as justifiable. Their exercise upon material interests is prefer-
able to acts of force upon the person. Where private property is
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
173
taken, it is because it is of such a character or so situated as to make
its capture a justifiable means of coercing the power with which we
are at war. If the hostile power has an interest in the property which
is available to him for the purposes of war, that fact makes it prima
facie a subject of capture. The enemy has such an interest in all con-
vertible and mercantile property within his control, or belonging to
persons who are living under his control, whether it be on land or
at sea; for it is a subject of taxation, contribution, and confiscation.
The humanity and policy of modern times have abstained from the
taking of private property, not liable to direct use in war, when on
land. Some of the reasons for this are the infinite varieties of the
character of such property,—from things almost sacred, to those
purely merchantable; the difficulty of discriminating among these
varieties; the need of much of it to support the life of non-combatant
persons and of animals; the unlimited range of places and objects
that would be opened to the military; and the moral dangers attend-
ing searches and captures in households and among non-combatants.
But on the high seas, these reasons do not apply. Strictly personal
effects are not taken. Cargoes are usually purely merchandise. Mer-
chandise sent to sea is sent voluntarily; embarked by merchants on
an enterprise of profit, taking the risks of war; its value is usually
capable of compensation in money, and may be protected by in-
surance; it is in the custody of men trained and paid for the purpose;
and the sea, upon which it is sent, is res omnium, the common field of
war as well as of commerce. The purpose of maritime commerce is
the enriching of the owner by the transit over this common field; and
it is the usual object of revenue to the power under whose government
the owner resides,
The matter may, then, be summed up thus: Merchandise, whether
embarked upon the sea or found on land, in which the hostile power
has some interest for purposes of war, is prima facie a subject of
capture. Vessels and their cargoes are usually of that character.
Of the infinite varieties of property on shore, some are of this char-
acter, and some not. There are very serious objections, of a moral
and economical nature, to subjecting all property on land to military
seizure. These objections have been thought sufficient to reverse the
prima facie right of capture. To merchandise at sea, these objec-
tions apply with so little force that the prima facie right of capture
remains.
Wheaton, p. 451, Note 171.
From the strict theory of hostile relations laid down above, it
would follow
(2) That enemies' property within the
country at the breaking out of a war was liable to confiscation. This
principle would apply also to debts due to them at that time. And
174
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
it would be a further application of it, if shares in the public stocks,
held by a foreign government, were confiscated. With regard to the
two former cases, the Supreme Court of the United States has decided,
in accordance with the body of earlier and later text-writers, that
by strict right such property is confiscable, but they add that such
a measure requires the sanction of the national legislature, which, it is
to be hoped, will never consent to disgrace the country by an act of
that kind. For the usage is now general, if not fixed, with the single
exception of measures of retorsion, to allow the subjects of the enemy
to remain within the territory during good behavior, in the enjoy-
ment of their property, or to give them, by public proclamation,
reasonable time to remove with their effects from the country. The
English and French in the late Crimean war allowed Russian vessels
six weeks' time to leave their ports and reach their destination.
Woolsey, pp. 194, 195.
?
Shares in the public debt.
With regard to the shares held by a government or its subjects in
the public funds of another, all modern authorities agree, we believe,
that they ought to be safe and inviolate. To confiscate either prin-
cipal or interest would be a breach of good faith, would injure the
credit of a nation and of its public securities, and would provoke
retaliation on the property of its private citizens.
“The Emperor Napoleon I., during his stay at Posen, imagining
that the cabinet of London had the intention of confiscating stock
in the public debt belonging to Frenchmen, ordered his minister of
finance to examine whether, in case they should so act, it would not
be necessary to have recourse to the same rigor. The matter is a very
delicate one, said he; I am not willing to set the example, but if the
English do so, I ought to make reprisals. M. Mollien replied that
such an act was so contrary to English policy that he could not believe
it, that he wished the cabinet of London would commit such a mis-
take, but that results would be the more disastrous for them if it were
not imitated. On this occasion he sent to the emperor the memoir
of Hamilton, the friend, counsellor, and minister of Washington, on
the question whether the political, more even than the moral rule,
did not forbid every government, not only to confiscate capital which
had been lent to it by the subjects of a power with which it was at
war, but even to suspend, as far as they were concerned, the payment
of interest. Napoleon did not insist further on the matter."
Woolsey, p. 196; Vergéon De Martens, sec. 258, ed of 1858.
Opinions of writers.
We close this subject with referring to some of the opinions which
text writers have expressed on the several points considered. As
for immovable property in an enemy's country, Bynkershoek says
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
175
that in strict justice it can be sold and confiscated, “as is the case
with personal property,” but he adds that it is a general usage
throughout Europe for the rents to go to the public treasury during
war, but for the property itself after the war to revert "
ex pactis”
to the former owner. (“Quaest. Jur. Publ.," 1, 7.) As for other
property, except debts, all jurists hold the same doctrine of its lia-
bility to confiscation. (Comp. Manning, p. 127, ed. I.) As for debts,
even Grotius decided that “these are not acquired by the right of
war, but only prevented by war from being exacted.” But Bynker-
shoek (u. s.) while he mentions that the right to confiscate them had
been questioned, adds that he can see no reason for a difference in
treatment of debts and of personal property, both being equally in
one's power. There must, however, be actual confiscation. “If the
sovereign,”—he goes on to say,—“has exacted debts due to his
enemies from his subjects, they are duly paid, but if not, at peace
the creditor's former right revives, because occupation in war consists
rather in fact than in jural power. Debts, therefore, if not con-
fiscated in time of war, suffer a temporary suspension, but after peace
return by a sort of postliminy to their old owner.” Accordingly, he
adds that treaties often provide for the non-payment to the creditor
of confiscated debts. Vattel takes the same ground as to debts, but
adds that all the sovereigns of Europe have departed from this rigor,
and, as the usage has altered, he who should act contrary to it would
injure the public faith. (B. iii., 5, $77.) Mr. Manning says that
“debts due from individuals to the enemy may be confiscated by the
rigorous application of the rights of war—but the exercise of this
right has been discontinued in modern warfare; and it may be
regarded as established, that though debts cannot be claimed by an
enemy during war, yet, that the right to claim payment revives on the
return of peace." (Pages 129, 130.) Dr. Wheaton says that for
nearly a century and a half previous to the French revolution, no
instance of confiscation of debts had occurred, with the simple excep-
tion of the Silesian loan, in 1753. And he sums up his view of inter-
national law on this point in the words, that property of the enemy
found within the territory of the belligerent state, or debts due to
its subjects by the government or individuals, at the commencement
of hostilities, are not liable to be seized and confiscated as a prize of
war. This rule, he adds, is frequently enforced by treaty stipula-
tions, but unless it be thus enforced, it cannot be considered as an
inflexible, though an established rule. (“ Elements,” iv., i. 345–347.)
Finally, as to public debts due to individual subjects of the enemy,
I will cite but the single authority of Mr. Manning: “One descrip-
tion of property is invariably respected during war, namely, the
sums due from the state to the enemy, such as the property which the
latter may possess in the public funds. This is justly regarded as
176
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
entrusted to the faith of the nation; and during the most bitter
animosity of our wars with France, no attempt has been made on
either side to confiscate such property, which cannot be touched
without a violation of public faith."
Woolsey, pp. 197, 198.
Property belonging to an enemy which is found by a belligerent
within his own jurisdiction, except property entering territorial
waters after the commencement of war, may be said to enjoy a prac-
tical immunity from confiscation; but its different kinds are not pro-
tected by customs of equal authority, and although seizure would
always now be looked upon with extreme disfavor, it would be un-
safe to declare that it is not generally within the bare rights of war.
Hall, p. 453.
Money lent by individuals to a State.
In one case a strictly obligatory usage of exemption has no doubt
been established. Money lent by individuals to a state is not con-
fiscated and the interest payable upon it is not sequestrated. Whether
this habit has been dictated by self-interest, or whether it was
prompted by the consideration that money so lent was given upon
the faith of an engagement of honor, because a Prince can not be
compelled like other men in an adverse way by a Court of Justice,
it is now so confirmed that in the absence of an express reservation
of the right to sequestrate the sums placed in its hands on going to
war a state in borrowing must be understood to waive its right, and
to contract that it will hold itself indebted to the lender and will
pay interest on the sum borrowed under all circumstances.
Hall, pp. 453, 454.
Real property, merchandise and other movables, and incorporeal
property other than debts due by the state itself, stand in a less
favorable position. Although not appropriated under the usual
modern practice they are probably not the subjects of a thoroughly
authoritative custom of exemption. During the middle ages time
was often given to merchants at the outbreak of war to withdraw
with their goods from a belligerent country, but the indulgence was
never transformed into a right, and at the beginning of the seven-
teenth century all kinds of property belonging to an enemy were
habitually seized. In the course of that century milder practices
began to assert themselves, and it became unusual to appropriate land,
though its revenues were taken possession of during the continuance
of war, and confiscations sometimes occurred so late as the war of
the Spanish Succession. In the treaties of peace made in 1713
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
177
between France and Savoy, the United Provinces and the Empire,
it was stipulated that confiscations effected during the preceding war
should be reversed. During the eighteenth century the complete
appropriation of real property disappeared, but its revenues con-
tinued to be taken, or at least to be sequestrated; and property of
other kinds was sometimes sequestered and sometimes definitely
seized. In order to guard in part against these effects of acknowl-
edged law it was stipulated in many commercial treaties that a
specified time varying from six months to a year should be allowed
for the withdrawal of mercantile property on the outbreak of war;
but property of other kinds was still governed by the general rule,
and cases frequently occurred, owing to the absence of special stipu-
lations, in which mercantile property was sequestrated or subjected to
confiscation. In the Treaties of Campo Formio, Luneville, Amiens,
Friedrichshamm, Jönköping, and Kiel, and in those between France
and Wurtemberg and France and Baden in 1796, and between Russia
and Denmark in 1814, and between France and Spain in the same
year, it was necessary to provide for the removal of sequestrations
which had been placed upon incomes of private persons and upon
debts; at the commencement of war between England and Denmark
in 1807, the former power seized and condemned the Danish ships
lying in British waters, and the latter confiscated all ships, goods and
debts within the kingdom which belonged to English subjects; in
1812 also the majority of the Supreme Court of the United States
held that, though enemy property within the territory at the out-
break of war could not be condemned in the then state of the law of
the United States, it was competent for the legislature to pass a law
authorising confiscation, and Justice Story considered that no legis-
lative act was necessary, and that 'the rule of the law of nations is
that every such exercise of authority is lawful, and rests in the sound
discretion of the nation. Since the end of the Napoleonic wars the
only instance of confiscation which has occurred was supplied by the
American Civil War, in which the Congress of the Confederate
States, by an Act passed in August, 1861, enacted that 'property of
whatever nature, except public stocks and securities held by an alien
enemy since the 21st May 1861, shall be sequestrated and appropri-
ated. The custom which has become general of allowing the subjects
of a hostile state to reside within the territory of a belligerent during
good behaviour brings with it as a necessary consequence the security
of their property within the jurisdiction, other than that coming into
territorial waters, and indirectly therefore it has done much to foster
a usage of non-confiscation; but as it is not itself strictly obligatory,
it can not confer an obligatory force, and the treaties which contain
stipulations in the matter, though numerous, are far from binding
178
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
all civilized countries even to allow time for the withdrawal of mer-
cantile property.
Upon the whole, although, subject to the qualification made with
reference to territorial waters, the seizure by a belligerent of prop-
erty within his jurisdiction would be entirely opposed to the drift
of modern opinion and practice, the contrary usage, so far as personal
property is concerned, was until lately too partial in its application,
and has covered a larger field for too short a time to enable appro-
priation to be forbidden on the ground of custom as a matter of
strict law; and as it is sanctioned by the general legal rule, a special
rule of immunity can be established by custom alone. For the pres-
ent therefore it can not be said that a belligerent does a distinctly
illegal act in confiscating such personal property of his enemies ex-
isting within his jurisdiction as is not secured upon the public faith;
but the absence of any instance of confiscation in the more recent
European wars, no less than the common interests of all nations and
present feeling, warrant a confident hope that the dying right will
never again be put in force, and that it will soon be wholly ex-
tinguished by disuse.
Hall, pp. 454458.
The modern usage of war forbids a belligerent to seize the prop
erty of enemy subjects which happens to be within his borders when
war begins. “They have acquired it," says Professor Pillet, “under
the surety of the guarantee given to international commerce and it
would be unjust to despoil them of it. Modern wars furnish but
two instances of the appropriation by a belligerent of the property
of resident enemy nationals. The first is the confiscation of the
property of alien enemies by the Confederate Congress in 1861. The
measure brought nearly 2,000,000 dollars into the Richmond Treas-
ury, but it is questionable if the material gain was not dearly pur-
chased by the alienation of European sympathy caused by the act.
Lord Russell summed up the general opinion on the matter in the
following words:
Whatever may have been the abstract rule of the Law of Nations in former
times, the instances of its application in the manner contemplated in the act
of the Confederate Congress in modern and more civilized times, are so rare
and have been so generally condemned that it may almost be said to have be-
come obsolete.
The second instance is the commandeering ” by the Transvaal
Government of gold belonging, in the main, to British shareholders.
Professor Despagnet presents the act as one within the lawful sov-
erignty of a belligerent Power “by reason of supreme necessity,” but
it is impossible not to see in it a simple case of confiscation of enemy
property which happened to be within the seizing belligerent's bor-
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
179
ders. The only “supreme necessity” in the case was the need of
funds for carrying on the war, and if such a need were held to justify
the seizure, the rule exempting enemy property would be a dead let-
ter. To say that the usage of nonconfiscation is not obligatory, and
that therefore the Boers and the Confederates were within their
strict rights in doing what they did, does not in the least amount to a
justification, for it is the essence of all usage that it is not obligatory.
The two instances in question stand out in glaring contrast with the
general practice of belligerents in these later days. They are chiefly
noteworthy as bringing into clearer relief the process by which con-
tract” (that powerful engine of civilization) is driving in its wedge
ever further and further and cleaving war in twain.
Spàight, pp. 31, 32; Pillet, p. 82; Hall, p. 439; Despagnet, p. 142.
In former times all private and public enemy property, immov-
able or movable, on each other's territory could be confiscated by
the belligerents at the outbreak of war, as could also enemy debts;
and the treaties concluded between many States with regard to the
withdrawal of each other's subjects at the outbreak of war stipu-
lated likewise the unrestrained withdrawal of the private property of
their subjects. Through the influence of such treaties as well as of
Municipal Laws and Decrees enacting the same, an international
usage and practice grew up that belligerents should neither confiscate
private enemy property nor annul enemy debts on their territory.
The last case of confiscation of private property is that of 1793 at
the outbreak of war between France and Great Britain. No case
of confiscation occurred during the nineteenth century, and although
several writers maintain that according to strict law the old rule, in
contradistinction to the usage which they do not deny, is still valid,
it may safely be maintained that it is obsolete, and that there is now
a customary rule of International Law in existence prohibiting the
confiscation of private enemy property and the annulment of enemy
debts on the territory of a belligerent. This rule, however, does not
prevent a belligerent from seizing public enemy property on his
territory, such as funds, ammunition, provisions, rolling stock of
enemy state-railways, and other valuables; from preventing the
withdrawal of private enemy property which may be made use of by
the enemy for military operations, such as arms and munitions;
from seizing and making use of rolling stock belonging to private
enemy railway companies, other means of transport of persons or
goods which are private enemy property, and, further, all appli-
ances for the transmission of news, although they are private enemy
property, provided all these articles are restored and indemnities
are paid for them after the conclusion of peace; and from suspending,
180
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
as a measure of self preservation, the payment of large enemy debts
till after the conclusion of peace in order to prevent the increase
of resources of the enemy.
Oppenheim, vol. 2, 139, 140.
Private enemy property brought into belligerent's territory.
The case of private property found by a belligerent on enemy
territory differs from the case of such property brought during time
of war into the territory of a belligerent. That private enemy prop-
erty on a belligerent's territory at the time of the outbreak of war
may not be confiscated has already been stated above in § 102. Tak-
ing this fact into consideration, as well as the other fact that private
property found on enemy territory is nowadays likewise as a rule
exempt from confiscation, there can be no doubt that private enemy
property brought into a belligerent's territory during time of war
may not, as a rule, be confiscated. On the other hand, a belligerent
may prohibit the withdrawal of those articles of property which can
be made use of by the enemy for military purposes, such as arms,
ammunition, provisions, and the like. And in analogy with article
53 of the Hague Regulations there can be no doubt that a belligerent
may seize such articles and make use of them for military purposes,
provided that he restores them at the conclusion of peace and pays
indemnities for them.
Oppenheim, vol. 2, p. 182.
Real property.
At the outbreak of war a state frequently discovers within its
borders a considerable amount of private property belonging to
subjects of the enemy. In dealing with such cases we shall find it
convenient to give separate consideration to real and personal prop-
erty, and to take first the case of real property or immovables. The
mediaeval rule was to confiscate such property as soon as hostilities
began, and not till the commencement of the eighteenth century do
we find germs of the contrary practice. By the middle of the cen-
tury Vattel was able to limit the rights of a belligerent to the se-
questration during the war of the income derived from such lands
and houses within his territory as belonged to subjects of the hostile
state. During the latter half of the century general custom fol-
loted this rule, but towards the close of it we find in treaties of peace
provisions for the removal of the sequestrations, a sure sign that even
the less severe mode of dealing with the property in question was
beginning to be condemned by enlightened opinion. The growth
of the practice of allowing enemy subjects resident in a country to
continue there unmolested during the war carried with it permission
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
181
for them to retain their property; and in modern times the real
property of enemy subjects has not been interfered with by the bel-
ligerent states in whose territory it was situated, even when the
owners resided in their own or neutral states, the one exception being
an Act of the Confederate Congress passed in 1861 for the appropria-
tion of all enemy property found within the Confederacy, except
public stocks and securities. This proceeding was deemed unwar-
rantably severe; and contrary usage has been so uniform that we may
safely regard the old right to confiscate or sequestrate as having
become obsolete through disuse.
Lawrence, p. 424.
Property of enemy State.
[Enemy property found within a state at the outbreak of war]
may belong to the enemy state or to its subjects. The first case is
exceedingly unlikely to arise except perhaps with regard to an am-
bassador's residence, which is sometimes owned by the state that
sends him. But as a general rule a state does not in its corporate
capacity own real property in its neighbor's territories, and if it
should possess personal property so situated, it would take care to
withdraw any of its goods and chattels that were in the power of a
probable foe as soon as relations became so strained that war was
likely to break out. It is, however, just possible that the commence-
ment of hostilities might find public ships, or treasure, arms and
military stores belonging to one belligerent, still remaining within
the territories of the other. In that case they would undoubtedly
be confiscated; but such things as books, pictures, statues, curios, and
ancient manuscripts, would probably be regarded as exempt from the
operations of warfare and restored accordingly. And it is im-
probable that any civilized state would confiscate a house owned by
its enemy, if it was acquired for the residence of his diplomatic rep-
resentative, and used for that purpose in time of peace.
Lawrence, p. 423.
Personal property.
Personal property or movables remained subject to confiscation
if found in an enemy's country at the outbreak of war for some time
after mitigations of the old severity began to be applied in the case
of real property. But we find indications of a change of sentiment
in numerous treaties negotiated during the eighteenth century,
whereby each of the contracting parties agreed to grant to subjects
of the other a fixed period for the withdrawal of mercantile property,
should war break out between them. These stipulations have been
followed by others extending up to the present time. They mark a
182
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
considerable advance; but some of them refer only to movables con-
nected with commerce, and leave other kinds of personal property
unprotected. Moreover, till the end of the Napoleonic wars the
mediaeval rule of confiscation was often applied in the absence of
special stipulations overriding it. But it was too severe for public
opinion; and in the treaties of the time there are numerous provisions
for mutual restoration at the conclusion of peace. Since the treaties
of Vienna of 1815 the only instance of confiscation is to be found in
the Act of the Confederate Congress alluded to in the previous
section.
Lawrence, pp. 425, 426.
The doctrine of the British and American courts, that war renders
confiscable enemy property found within the state at the outbreak of
war, but does not ipso facto confiscate it, was regarded as good in
International Law at the beginning of the last century. It was laid
down by the Supreme Court in the case of Brown v. the United
States, when it was further decided that by the Constitution an Act
of Congress was necessary to effect confiscation or authorize the
President to confiscate, whereas in Great Britain a Royal Proclama-
tion was sufficient. But it may be questioned whether the old right
is still in existence. For more than a century it has not been acted
on, save in the one instance of 1861; and the circumstances under
which this solitary return to former severity took place deprive
it of much weight as a precedent for international action.
What is done by the weaker party in a bitter civil war is hardly
a guide for ordinary belligerents in a struggle between independent
states. If it is right to argue from the practice of nations to the law
of nations, we may join the great majority of continental publicists
in the assertion that the International Law of our own time does not
permit the confiscation of the private property of enemy subjects
found on the land territory of the state at the outbreak of war. The
right to seize and appropriate is obsolete, except perhaps with regard
to objects directly useful in war, which might be detained lest they
should reach the enemy and swell his resources. In order to meet
such a danger, it might be wise to retain in the constitutional law
of the state a power of sequestration, to be exercised on rare oc-
casions and with regard to special kinds of property. But no power
of confiscation is needed; nor would its exercise be endured today,
when capital is cosmopolitan and there are few civilized countries
without a considerable population of resident foreigners. Interna-
tional Law should allow, under careful limitations, a right to se-
questrate, but nothing more.
Lawrence, pp. 426, 427; Brown v. U. S., 8 Cranch, 110.
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
183'
1
Private debts.
An attempt was made early in the nineteenth century by the
British Court of King's Bench to enforce in the case of private debts
a rule of non-confiscation, and thus give them a more privileged
position than other kinds of personal property. But the claim is
not considered by most writers to have been sound when it was made,
and would certainly fail of recognition at the present time. But
while no difference would be made today between the various kinds
of personalty, the mild rule for which Lord Ellenborough, the then
Chief Justice, contended in the case of debts in 1817 would probably
be applied generally.
Lawrence, p. 427; Maule and Selwyn, 6 King's Bench Reports, 92.
Stock in public loans.
There is one kind of personal and incorporeal property which is
clearly exempt from confiscation. There can be no doubt that long
usage, and a due regard for self-interest, compel belligerent states
to refrain from confiscating the stock held by subjects of the enemy
in their public loans, and to pay the covenanted interest on such
stock during the continuance of the war. The question came up for
discussion during the famous Silesian Loan Controversy between
Great Britain and Prussia in the middle of the eighteenth century.
In the year 1752 Frederick the Great of Prussia confiscated funds
due to British subjects in respect of a loan secured upon the revenues
of Silesia. The money had been originally lent to the Emperor
Charles VI; but when Silesia was ceded to Prussia in 1742 by Maria
Theresa, his successor in the Austrian dominions, Frederick agreed
to take upon himself all the obligations connected with the loan.
Ten years after he laid hands upon the property of the British
stockholders, in retaliation for the capture and condemnation by
Great Britain of neutral Prussian merchantmen under circumstances
deemed unlawful by the jurists whom he consulted. The British Gov-
ernment replied to their arguments in a masterly state paper, due
chiefly to the pen of Murray, the Solicitor-general, who was after-
wards the great Lord Mansfield. He showed that war itself had
not been held to justify reclamations on the public debt, and argued
that a lesser injury, if injury there had been, could not give just
ground for so unprecedented a severity. By almost universal con-
sent the British contention was triumphant. Undoubtedly, Prussia
had a real grievance against Great Britain; for British prize courts
had condemned Prussian vessels carrying materials for shipbuilding,
though the British Minister for Foreign Affairs had declared to the
Prussian envoy that such cargoes would not be regarded as contra-
band. The controversy was settled in 1756 by the Treaty of West-
minster, whereby Prussia agreed to remove the sequestration placed
184
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
upon the Silesian loan, and Great Britain covenanted to pay an in-
demnity of £20,000 for the benefit of Prussian subjects who had suf-
fered wrongfully by her captures. The unbroken practice of civilized
states for generations past renders the principle that stock in the
public debt held by enemy subjects should be exempt from seizure,
an undoubted rule of modern International Law. The real reason
for the rule is probably to be sought rather in the exigencies of pub-
lic credit than in the sanctities of public faith. It is difficult to
see how the obligations undertaken by a state with regard to the
money it has borrowed are more sacred than its other obligations
towards private individuals. But there is no difficulty in under-
standing that the rate of interest on a loan which might be confis-
cated in the event of war between the borrowing country and the
country of the lender would be very much higher than the rate on
an unconfiscable stock. States desire to borrow on as easy terms as
possible, and therefore they are glad to give lenders the benefit of
the most complete security.
Lawrence, pp. 427-429.
One class of property, in this case an incorporeal right, shall be
mentioned at the outset, since it no longer gives rise to any question.
Neither the principal nor the interest of a state debt can be confis-
cated or sequestrated because the individuals to whom it is due are
enemy subjects.
The reason commonly given is that the debts of a state are debts
of honour, to which it may be added, as cause rather than as reason,
that if the rule were otherwise states would have to contract their
loans at much more onerous rates of interest.
On all other points relating to enemy subjects and property withiri
the territory the first relaxation of the ancient law, which made pris-
oners of the subjects and confiscated the property, seems to have taken
place in favour of merchants. By s. 41 of Magna Carta (1215)
King John provided that“if in time of war merchants of the country
at war with us shall be found in our country at the outbreak of the
war, they shall be attached without damage to their bodies or their
goods, until it is known to us or to our chief justice how merchants
of our country who are then found in the country at war with us are
treated; and if ours are safe there the others shall be safe in our
country." When Louis IX arrested the English merchants and their
goods in France at the outbreak of war with England in 1242,
Matthew Paris describes his conduct as an outrage on the ancient
dignity of France, and Henry III retaliated. By the Statute of
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
1.85
Staples in 1354, 27 Ed. III, it was provided that foreign merchants,
on the breaking out of war with their country, should have forty
days in which to depart with their goods, and forty more if pre-
vented by accident from availing themselves of the first grace, with
liberty to sell their goods. An ordinance of Charles V of France
gave foreign merchants, trading in France at the time of a declara-
tion of war, liberty to depart freely with their effects. And by a
treaty of 1483 between Louis XI and the Hanse Towns merchants of
the latter were allowed to remain in France for a year after a war
should break out, with protection for their persons and goods. Later,
treaties became common by which not only the merchants but all the
subjects of the contracting states were allowed to withdraw them-
selves and their property from the respective countries in the event
of war between them. Bynkershoek, who thought that the law re-
mained unaltered in the absence of treaty, was able to give a list of
such; and Hall has added a list of such, concluded since the middle of
the eighteenth century, in which the time allowed for withdrawal
and arrangement of affairs varies from six months to a year. But
the modern practice goes further. A right of residence during good
behaviour, with safety to their effects, was allowed to French and
Spanish subjects respectively by the British declarations of war in
1756 and 1762, and Hall has given a list of treaties, beginning with
that of 1795 between Great Britain and the United States, in which
that right is stipulated.
Westlake, pp. 41, 42, 44, 45; Hall. sec. 126.
Permission to enemy subjects to remain in the country, even if in
the express words of a treaty it should happen to stand alone, must
in common sense carry with it permission to enjoy their property
while so remaining. And if enemy subjects being in the country
may enjoy their property, it would be inequitable to confiscate that
of those who are not in it and therefore as individuals cause no
danger. This has been admitted by the conclusion of many treaties
in which it is expressly stipulated that the debts, shares in public
funds or in companies, and monies in banks of the respective sub-
jects shall not be sequestered or confiscated in case of war.
The system of the treaties may therefore be deemed to amount to
a general agreement, on the part of governments, that modern in-
ternational law forbids making prisoners the persons or confiscating
the property of enemy subjects in the territory at the outbreak of war,
or, saving the right of expulsion in case of apprehended danger to
the state, refusing them the right of continued residence during good
behaviour. When in 1803 Napoleon ordered the arrest of all British
subjects in France and the Italian Republic, he did not claim to do so
110678-1913
186
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
on the general ground of their enemy character, but put the measure
as one of retorsion for the capture of French merchant ships before
declaration of war, an excuse which was not justified in view of the
then customary character of that practice. The latest measures of
interference with enemy property on land, as such, that have been
resorted to by governments appear to be the laws as to debts due to
British subjects passed by certain of the American colonies after
their declaration of independence, and the Danish ordinance con-
fiscating debts due to British subjects on the outbreak of war in
1807. Since the Confederate States of America never became a
recognised member of the family of nations, the act of their con-
gress in 1861, confiscating all property except public stocks and
securities held within their limits by alien enemies, including persons
domiciled in the enemy's country, need scarcely be admitted as
another instance.
Westlake, pp. 45–47.
Interests in corporations.
The shares and debentures of companies incorporated under Brit-
ish law which are held by enemy subjects at the outbreak of a war
will not cease to exist, but must continue as properties, whatever be
decided as to the ownership of those properties. There is therefore
no alternative but either to confiscate them for the benefit of the
British government, which in many cases would be contrary to treaty
and in all cases is now out of the question, or to regard the enemy
shareholders and debenture holders as continuing to be such. то
strike out the enemy subjects from the lists of persons interested,
without more, would practically be to confiscate their properties for
the benefit of the other shareholders, a proceeding which would be
grotesque in its injustice, and which would fall within the spirit if
not within the letter of treaties prohibiting confiscation. But the
dividends on the shares and the interest on the debentures, so
far as not represented by coupons payable to bearer and of which
therefore the ownership would not be apparent to the companies,
cannot be paid to the enemy subjects during the war. After its
close they will be entitled to claim the back dividends and interest,
but not to interest on debentures after their maturity, subject, in
the case of shareholders, to their paying any calls made in the
meantime. And the prohibition of commercial intercourse with
enemy subjects will during the war prevent the shareholders from
exercising voting powers, while the enemy directors who can not
1 It was only North Carolina that went to the full extent of confiscation on the ground
of enemy property. Georgia made an exception for debts due to persons residing in
Great Britain, which may indicate that the action taken against the loyalists in the
state was grounded on their conduct being considered rebellious; and in Virginia the
debts were only sequestered.
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
187
continue to fill their places while their duties would be in sus-
pense, must be regarded as deprived of that character from the
outbreak. Lastly, we shall see that for purposes of maritime cap-
ture the enemy character of property is not decided in England
by the nationality of the owner, but by his domicile in a peculiar sense,
differing considerably from ordinary domicile, which is known as
trade domicile in war, but is equally applicable to persons not engaged
in trade. The analogy, as well as reasons of convenience, suggests
that in all this section enemy subjects or directors should be
understood as those persons, whatever their nationality, who have
such a domicile in the enemy's country and no other.
Westlake, vol. 2, pp. 53, 54.
T'he Effect of War on the Financial Engagements of States.-Such
engagements may exist either with other States, or with individuals
or corporations. On this subject the following conclusions appear to
be warrantable in principle, as well as from the standpoint of modern
practice so far as that extends:-(1) Where money has been lent to
a State on the faith of its public credit, the fact that the loan or any
part thereof has been subscribed or is held by nationals of a State
between which and the debtor State war has broken out will not
justify either a repudiation of the debt or a sequestration of principal
or interest. That private interests in public debts are exempt from
reprisals and sequestration, both in peace and war, may probably be
taken to have been established as one of the results of the controversy
which took place between Great Britain and Prussia in 1753 with
respect to the Silesian loan, whilst it has also been affirmed by par-
ticular treaties, and is now still further strengthened by the desire
of States to maintain their credit in the money markets of the world.
At any rate, the practice on the subject is virtually unbroken. Even
the Southern Confederacy in 1861, in decreeing the sequestration of
the property of alien enemies, excepted“ public stocks and securities."
(2) In the case where a State or group of States guarantee a public
loan made by individuals to some other State, the liability of the
guarantors to the principal creditors would, in view of the same con-
siderations, not be affected by the outbreak of war between the debtor
State and one or more of the guarantor States; and the same would
apply to any liability that might be incurred towards the guarantors
by the debtor State itself, although in this case subject to the possible
qualifications suggested below. (3) In the case, not now so common,
where one State advances money directly by way of loan to another
State, there would usually be an express stipulation against any
annulment of the obligation by war, but even in default of this the
trend of modern practice appears to sanction the view that such an
engagement should be respected. It is, however, contended by some
that the debtor State, even whilst respecting the engagement ulti-
188
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
mately, would be justified in suspending payment of interest or prin-
cipal to the enemy during the continuance of the war; but this con-
clusion, although justified by the analogous suspension of private
debts under the Anglo-American rules, is not borne out by modern
examples so far as these avail. In any of these cases it is, of course,
conceivable that the debtor State might be prevented by the financial
strain imposed by the war from fulfilling its engagements; but the
default in such a case would rest on different grounds and be gov-
erned by different principles.
Cobbett, pt. II, pp. 44, 45.
Enemy Property.—(i.) Public Property.—Property belonging to
the enemy State, which a belligerent finds within his jurisdiction at
or after the outbreak of war, and which is not protected by some
special immunity, is liable to seizure. So public vessels, arms, muni-
tions of war and supplies, railway plant and the like, together with
money and realizable securities, belonging to the enemy State, may
be lawfully seized. Land is rarely the subject of ownership by a
foreign State, save perhaps for diplomatic and consular residences
which would in any case be exempt; but if land were so owned, then
it would also appear to be equally liable to appropriation.
(ii.) Private Property of Immediate Use in War.- Property be-
longing to enemy subjects which is of a kind likely to be of imme-
diate use in war, and which is found within the jurisdiction at or
after the outbreak of hostilities, is also liable to seizure; although, on
the analogy of the rules now governing the treatment of similar
property in hostile territory, it seems that the seizure would now be
subject to an obligation of restitution or indemnity on the return of
peace. This right would also extend to enemy merchant vessels
whose construction indicated that they were intended to be con-
verted into ships of war.
(iii.) Private Property of Other Kinds.—The treatment of other
kinds of enemy property that may be found in a like situation has
been the subject of different usages at different times, and is still
the subject of a marked difference of opinion. Looking, first, to the
practice of States—one may probably say that down to the 16th
century all private property of whatever kind having an enemy
character and found by a belligerent within his own territory was
subject to confiscation. After this, however, we notice a gradual
relaxation of the earlier practice, dictated, no doubt, by a perception
of common interest. As regards land, sequestration was gradually
substituted for confiscation; whilst as regards movable property,
the practice of confiscation was greatly mitigated, first, by the be-
stowal on enemy subjects, either by treaty or municipal law, of a
right of withdrawal, which was invariably coupled with a right to
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
189
remove or dispose of their property, and next, by the formation of a
usage to that effect apart from treaty. Nevertheless, down to the end
of the 18th century instances of the confiscation of movable prop-
erty, occur in a variety of cases not covered by treaty. But as the
more liberal practice of allowing enemy subjects to remain during
good behaviour grew in strength, this necessarily carried an im-
munity from interference with their property on the part of such as
remained; whilst a like immunity could scarcely be refused to non-
residents, who were less a source of danger than resident enemies.
So ultimately all private property, not being of a noxious kind,
came to enjoy a virtual immunity from confiscation; and this whether
it consisted of land, or goods, or property of an incorporeal nature,
such as debts and credits; although enemy merchant vessels
found in a belligerent port at the outbreak of war remained liable
to seizure until the middle of the 19th century. Subject to this ex-
ception, we find as from the commencement of the 19th century, only
two instances of confiscation. One of these occurred in 1807, when
the Danish Government issued the ordinances already referred to,
sequestrating and ultimately confiscating the property of British
subjects found in Denmark; a proceeding, however, which was really
a measure of reprisal. The other occurred in 1861, when the South-
ern Confederacy issued a decree confiscating all property of what-
soever nature, except public stocks and securities, held by alien
enemies since the 1st May, 1861. But this, again, was an excep-
tional measure, resorted to by a rebel Government by way of retalia-
tion against the parent State; whilst a proposed extension of it,
which would have affected foreign interests, was the subject both of
protest and general condemnation. Passing, next, to legal theory
we notice a marked divergence of opinion. According to one view,
there is already an obligatory custom of exemption. This is the view
commonly adopted by most European writers. But this conclusion
must probably be taken, in the quarters from which it proceeds, as
being implicitly subject to such qualifications as may be imposed by
military necessity; or, in any case, as being subject to such qualifica-
tions as may be imposed by the requirements of public safety or the
laws of reprisal. According to the other view, war, although it
does not of itself work a confiscation of property in this situation,
yet confers on the sovereign authority a right to decree its confisca-
tion if this should be found necessary. This may be said to represent
generally the Anglo-American view, both as a matter of municipal
law and as an interpretation of international law. In practice, how-
ever, both systems recognize the exemption of private property as a
policy that ought to be followed save in exceptional cases. The dif-
ference in effect, then, between these two views does not appear to be
very great. One recognizes exemption as obligatory, save in cases of
necessity or emergency; the other recognizes a technical right of seiz-
1
190
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ure, but subject to a general policy of exemption. In their practical
application each would probably sanction the confiscation of private
property in exceptional circumstances, such as public necessity, or
by way of reprisal; whilst outside such cases, each recognizes its
immunity.
Cobbett, pt. II, pp. 60–62.
Legislation in United States during Civil War.
Confiscation Acts of 1861 and 1862-(1) Scope and Effect. Dur-
ing the Civil War several important acts were passed by congress.
To the extent that these acts were intended as punishment of the
owners of the property for participation in the war, their operation
was limited by the constitution to the forfeiture of the life-estate of
the owner. But those relating to the confiscation of property actu-
ally used in aid of the war worked a forfeiture of the fee.
G. G. Wilson in 40 Cyc. p. 333.
State laws in United States.
State laws. Prior to the adoption of the federal constitution, the
several states, subject to restrictions in their own constitutions, pos-
sessed the power to pass confiscation laws; and such laws directed
principally at Tories in the Revolution were passed and enforced in
a number of the states.
G. G. Wilson in 40 Cyc. p. 335.
Japanese subjects are allowed to continue, under the protection
of the Russian laws, their sojourn and the exercise of peaceful occu-
pations in the Russian Empire, excepting in the territories which are
under the control of the imperial viceroy in the Far East.
Imperial Russian order, Feb. 14, 1904; For. Rel. 1904, 727.
Hamilton v. Eaton, 2 Martin (North Carolina) 83, Scott's Cases,
p. 482.-The Court said: “As to the confiscation here alleged it is
doubtless true that enemies property so far as consists in barring the
creditor, and compelling payment from the debtors for the use of
the public, can be confiscated; and that on principles of equity,
though perhaps not of policy, they may be. For their confiscation
as well as that of property of any kind, may serve as an indemnity
for the expenses of war, and as a security against future aggression.
That such confiscations have fallen into disuse, has resulted not from
the duty which one nation, independent of treaties, owes to another,
but from commercial policy, which European nations have found a
common, and indeed a strong interest, in supporting. Civil war,
which terminates in a severance of empire, does, perhaps, less than
any other, justify the confiscation of debts; because of the special.
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
191
relation and confidence subsisting at the time they were contracted,
and it may have been owing to this condition as well as others,
that the American States, in the late revolution, so generally for-
bore to confiscate the debts of British subjects. In Virginia, they
were only sequestered; in South Carolina, all debts to whomsoever
due were excepted from confiscation; as were in Georgia, those of
“British merchants and others residing in Great Britain.” And in
the other States, except this, I do not recollect that British debts
were touched. Certain it is, that the recommendation of Congress on
the subject of confiscation did not extend to them. North Carolina,
however, judging for herself, in a moment of severe pressure, exer-
cised the sovereign power of passing an act of confiscation, which ex-
tended, amongst others, to the debts of the plaintiffs. ... Allow-
ing, then, that the debt in question was in fact of right confiscated,
the Court held that the plaintiffs could recover by virtue of the pro-
visions of the treaty of 1783, between the United States and Great
Britain.
See also Ware v. Hylton, 3 Dall. 199.
By the law of nations the debts, credits, and corporal property of
an enemy, found in the country on the breaking out of war, are
confiscable.
Moore's Digest, vol. 7, p. 288, citng Cargo of ship Emulous, 1 Galli-
son, 562.
Ware v. Ilylton, 3 Dallas, 199.-Chance, J, said: “It appears to me
that every nation at war with another is justifiable, by the general
and strict law of nations, to seize and confiscate all movable prop-
erty of its enemy (of any kind or nature whatsoever), wherever
found, whether within its territory, or not.
*
*
“The right to confiscate the property of enemies, during war,
is derived from a state of war, and is called the rights of war. This
right originates from self-preservation, and is adopted as one of
the means to weaken an enemy, and to strengthen ourselves. Justice
also is another pillar on which it may rest; to wit, a right to reim-
burse the expense of an unjust war. Vatt. lib. 3, c. 8, par. 128, and
c. 9, par. 161.
“But it is said, if Virginia had a right to confiscate British prop-
erty, yet by the modern law and practice of European nations, she
was not justified in confiscating debts due from her citizens to
subjects of Great Britain; that is, private debts. Vattel is the only
author relied on (or that can be found) to maintain the distinction
between confiscating private debts, and other property of an enemy.
He admits the right to confiscate such debts, if the term of payment
192
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
war.
happen in the time of war; but this limitation on the right is no-
where else to be found. His opinion alone will not be sufficient to
restrict the right to that case only. It does not appear in the present
case, whether the time of payment happened before, or during the
If this restriction is just, the plaintiff ought to have shown
the fact. Vattel adds at present, in regard to the advantages and
safety of commerce, all the sovereigns of Europe have departed from
this rigor; and this custom has been generally received, and he who
should act contrary to it (the custom) would injure the public
faith. From these expressions it may be fairly inferred, that by
the rigor of the law of nations, private debts to enemies might be
confiscated, as well as any other of their property; but that a gen-
eral custom had prevailed in Europe to the contrary; founded on
commercial reasons.
“The law of nations may be considered of three kinds, to wit,
general, conventional or customary. The first is universal, or es-
tablished by the general consent of mankind, and binds all nations.
The second is founded on express consent, and is not universal, and
only binds those nations that have assented to it. The third is
founded on tacit consent; and is only obligatory on those nations
who have adopted it. The relaxation or departure from the strict
rights of war to confiscate private debts, by the commercial nations
of Europe, was not binding on the state of Virginia, because founded
on custom only; and she was at liberty to reject or adopt the custom,
as she pleased. The conduct of nations at war is generally governed
and limited by their exigencies and necessities. Great Britain could
not claim from the United States, or any of them, any relaxation
of the general law of nations, during the late war, because she did
not consider it as a civil war, and much less as a public war, but
she gave it the odious name of rebellion; and she refused to the
citizens of the United States the strict rights of ordinary war.
*
“The law of nations is part of the municipal law of Great Britain,
and by her laws, all movable property of enemies, found within the
kingdom, is considered as forfeited to the crown, as the head of the
nation; but if no inquisition is taken to ascertain the owners to be
alien enemies, before peace takes place, the cause of forfeiture is dis-
charged by the peace, ipso facto. Sir Thomas Parker's Rep. p. 267.
This doctrine agrees with Bynk. lib. I. c. 7, p. 177, and Lee on Capt. c.
8, p. 118, that debts not confiscated and paid, revive on peace. Lee
says, debts, therefore, which are not taken hold of, seem, as it were,
suspended and forgotten in time of war; but, by a peace, return to
their former proprietor, by a kind of postliminy.' Mr. Lee, who
wrote since Vattel, differs from him in opinion, that private
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
193
debts are not confiscable, p. 114. He thus delivers himself:
* By the law of nations, rights and credits are not less in our power
than other goods; why, therefore, should we regard the rights of war
in regard to one, and not to the other? And when nothing occurs
which gives room for a proper distinction, the general law of nations
ought to prevail.' He gives many examples of confiscating debts,
and concludes (p. 119), 'All which prove, that not only actions, but
all other things whatsoever, are forfeited in time of war, and are
often exacted.'”
Ware v. Hylton, 3 Dallas, 199, 254, 255.—Peterson, J. said: “The
confiscation of debts is at once unjust and impolitic; it destroys
confidence, violates good faith, and injures the interests of commerce;
it is also unproductive, and in most cases impracticable.
In
the war that broke out between France and Spain in the year 1684,
His Catholic Majesty endeavored to seize the effects of the subjects of
France in his Kingdom; but the attempt proved abortive, for not one
Spanish agent or factor violated his trust, or betrayed his French
principal or correspondent.
Confiscation of debt is consid-
ered a disreputable thing among civilized nations of the present day;
and indeed nothing is more strongly evincive of this truth, than that
it has gone into general desuetude, and whenever put into practice,
provision is made by the treaty, which terminates the war, for the
mutual and complete restoration of contracts and payment of
debts."
Brown v. United States, 8 Cranch 110.-Chief Justice Marshall de-
livered the following opinion of the Court:
“The material question made at bar is this: can the pine timber,
even admitting the property not to be changed by the sale in Novem-
ber, be condemned as prize of war? The cargo of the Emulous hav-
ing been legally acquired and put on board the vessel, having been
detained by an embargo not intended to act on foreign property, the
vessel having been detained by an embargo not intended to act on
foreign property, the vessel having sailed before the war, from
Savannah, under a stipulation to reland the cargo in some port of the
United States, the re-landing having been made with respect to the
residue of the cargo, and the pine timber having been floated into
shallow water, where it was secured and in the custody of the owner
of the ship, an American citizen, the Court can not perceive any solid
distinction, so far as respects confiscation, between this property and
other British property found on land at the commencement of hos-
tilities. It will therefore be considered as a question relating to such
property generally, and to be governed by the same rule.
“Respecting the power of government no doubt is entertained.
That war gives to the sovereign full right to take the persons and
194
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
confiscate the property of the enemy, wherever found, is conceded.
The mitigations of this rigid rule, which the humane and wise pol-
icy of modern times has introduced into practice, will more or less
affect the exercise of this right, but can not impair the right itself.
That remains undiminished, and when the sovereign authority shall
choose to bring it into operation, the judicial department must give
effect to its will. But until that will shall be expressed, no power
of condemnation can exist in the court.
“The questions to be decided by the court are: 1st. May enemy's
property, found on land at the commencement of hostilities, be seized
and condemned as a necessary consequence of the declaration of war?
2nd. Is there any legislative act which authorizes such seizure and
condemnation?
“Since in this country, from the structure of our government, pro-
ceedings to condemn the property of an enemy found within our ter-
ritory at the declaration of war, can be sustained only upon the prin-
ciple that they are instituted in execution of some existing law, we
are led to ask:
“Is the declaration of war such a law? Does that declaration by
its own operation, so vest the property of the enemy in the govern-
ment, as to support proceedings for its seizure and confiscation, or
does it vest only a right, the assertion of which depends on the will
of the sovereign power?
“The universal practice of forbearing to seize and confiscate debts
and credits, the principle universally received, that the right to them
revives on the restoration of peace, would seem to prove that war is
not an absolute confiscation of this property, but simply confers the
right of confiscation.
Between debts contracted under the faith of laws, and property
acquired in the course of trade, on the faith of the same laws, reason
draws no distinction; and, although, in practice, vessels with their
cargoes, found in port at the declaration of war, may have been
seized, it is not believed that modern usage would sanction the seizure
of the goods of an enemy on land, which were acquired in peace in
the course of trade. Such a proceeding is rare, and would be deemed
a harsh exercise of the right of war. But although the practice in this
respect may not be uniform, that circumstance does not essentially af-
fect the question. The inquiry is whether such property vests in the
sovereign by the mere declaration of war, or remains subject to a
right of confiscation, the exercise of which depends on the national
will; and the rule which applies to one case so far as respects the
operation of a declaration of war on the thing itself, must apply to
all others over which war gives an equal right. The right of a sov-
ereign to confiscate debts being precisely the same with the right to
confiscate other property found in the country, the operation of a
66
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
195
declaration of war on debts and on other property found in the coun-
try must be the same. What then, is this operation?
“Even Bynkershoek, who maintains the broad principle, that in
war everything done against an enemy is lawful; that he may be
destroyed, though unarmed and defenceless; that fraud or even
poison, may be employed against him; that a most unlimited right
is acquired to his person and property; admits that war does not
transfer to the sovereign a debt due to his enemy; and, therefore, if
payment of such debt be not exacted, peace revives the former right
of the creditor; 'because,' he says, 'the occupation which is had by
war consists more in fact than in law. He adds to his observations
on this subject, 'let it not, however, be supposed that it is only trije
of actions, that they are not condemned ipso jure, for other things
also belonging to the enemy, may be conceded and escape condem-
nation.'
“Vattel says, that 'the sovereign can neither detain the persons
nor the property of those subjects of the enemy who are within his
dominions at the time of the declaration,
“It is true that this rule is, in terms, applied by Vattel to the
property of those only who are personally within the territory at
the commencement of hostilities; but it applies equally to things in
action and to things in possession, and if war did, of itself, without
any further exercise of the sovereign will, vest the property of the
enemy in the sovereign, his presence would not exempt it from this
operation of war.
“Nor can a reason be perceived for maintaining that the public
faith is more entirely pledged for the security of property trusted
in the territory of the nation in time of peace, if it be accompanied
by its owner, than if it be confided to the care of others.
“ Chitty, after stating the general right of seizure, says, 'but, in
strict justice, that right can take effect only on those possessions of a
belligerent which have come to the hands of his adversary after the
declaration of hostilities. (p. 67.)
“ The modern rule, then, would seem to be, that tangible property
belonging to an enemy and found in the country at the commence-
ment of war, ought not to be immediately .confiscated; and in almost
every commercial treaty an article is inserted stipulating for the
right to withdraw such property.
This rule seems to be totally incompatible with the idea that
war does of itself vest the property in the belligerent government.
It may be considered as the opinion of all, who have written on the
jus belli, that war gives the right to confiscate, but does not itself
confiscate the property of the enemy; and their rules go to the
exercise of this right.
196
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
6
The Constitution of the United States was framed at a time when
this rule, introduced by commerce in favor of moderation and
humanity, was received throughout the civilized world. In ex-
pounding that Constitution, a construction ought not lightly to be
admitted which would give to a declaration of war an effect in this
country it does not possess elsewhere, and which would fetter that
exercise of entire discretion respecting enemy property, which may
enable the Government to apply to the enemy the rule that he applies
to us.
“If we look to the Constitution itself, we find this general reason-
ing much strengthened by the words of that instrument.
“That the declaration of war has only the effect of placing the two
nations in a state of hostility, of producing a state of war, of giving
those rights which war confers; but not of operating, by its own
force, any of those results, such as a transfer of property, which are
usually produced by ulterior measures of government, is fairly de-
ducible from the enumeration of powers which accompanies that of
declaring war. Congress shall have power'--' to declare war, grant
letters of marque and reprisal, and make rules concerning captures
on land and water.'
“It would be restraining this clause within narrower limits than
the words themselves import, to say that the power to make rules
concerning captures on land and water is to be confined to captures
which are exterritorial. If it extends to rules respecting enemy
property found within the territory, then we perceive an express
grant to Congress of the power in question as an independent sub-
stantive power, not included in that of declaring war.
“The acts of Congress furnish many instances of an opinion that
the declaration of war does not, of itself, authorize proceedings
gainst the persons or property of the enemy found, at the time,
within the territory.
“War gives an equal right over persons and property; and if its
declaration is not considered as prescribing a law respecting the per-
son of an enemy found in our country, neither does it prescribe a law
for his property. The act concerning alien enemies, which confers
on the President very great discretionary powers respecting their
persons, affords a strong implication that he did not possess those
powers by virtue of the declaration of war.
The 'act for the safe-keeping and accommodations of prisoners
of war,' is of the same character.
“The act prohibiting trade with the enemy contains this clause:
"And be it further enacted, that the President of the United States
be and he is hereby authorized to give, at any time within six months
after the passage of this act, passports for the safe transportation of
66
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
197
66
any ship or other property belonging to British subjects, and which
is now within the limits of the United States.'
The phraseology of this law shows that the property of a British
subject was not considered by the legislature as being vested in the
United States by the declaration of war; and the authority which the
act confers on the President is manifestly considered as one which
he did not previously possess.
British property found in the United States, on land, at the com-
mencement of hostilities with Great Britain, can not be condemned
as enemy's property without a legislative act authorizing its con-
fiscation.
Moore's Digest, vol. 7, p. 288, citing Brown v. United States, 8 Cranch,
110.
Directly, this case [Brown v. The United States, 8 Cranch 110]
decides no more than that enemy property found on land within
the United States after the outbreak of war cannot be condemned
without a legislative enactment authorizing such confiscation; and
that the mere act of the Legislature in declaring war is not such an
authority. Incidentally, no doubt, it was ruled (1).that, according
to the law of nations as interpreted by the Court, the outbreak of
war between two States, although it does not of itself work a con-
fiscation, yet confers on the sovereign authority in each State a right
to take the persons and to confiscate the property of its enemies
found within its jurisdiction, even though the humane policy of
modern times may mitigate the exercise of this right in practice; and
(2) that if the sovereign authority chooses to exercise this right and
to direct confiscation, then the judicial department will have no
option but to give effect to it. The second proposition is in itself un-
questionable, whether as a statement of American or English law,
and would probably hold true in other systems; although the legality
of such a proceeding might, no doubt, in a case where the facts ad-
mitted of this, be questioned in the courts of other countries. The
first and more important of these propositions—although frequently
challenged and although it must be admitted that the practice of ex-
emption has grown in strength since the time at which the judgment
was delivered—is still believed to hold good as a formal statement of
the existing law. As regards persons, however, the right of seizing
and detaining enemy persons found within the jurisdiction, although
still exerciseable in the last resort and as a matter of technical right,
is, as we shall see, now controlled in its exercise-at any rate as re-
gards persons having no military or other status specially connect-
ing them with the war-by a long course of usage, which some
198
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
writers conceive to have become obligatory, but which, in any case,
could not be violated without entailing considerable opprobrium.
As regards property, again, the right of confiscation, although not
wholly abandoned, has become-as indeed it was pronounced to have
become in the later decision of the Supreme Court in Hanger v. Ab-
bott (6 Wall. 532)—“ a naked and impolitic right condemned by the
enlightened conscience and judgment of modern times”; as a right,
in fact, which does not ensue from the mere fact of war, and which
would not now be resorted to except as “an ulterior measure of gov-
ernment" expressly directed by the sovereign authority and designed
to meet some exceptional situation.
The English law on this subject appears in the main—and not-
withstanding some conflict of authority and some special enactments
in favour of foreign merchants—to agree with the view adopted by
the American Courts, and to be subject to the same limitations as
regards its practical exercise; although the exercise of any dis-
cretionary power in the matter would under the British system rest
with the Crown unless Parliament otherwise provided. With respect
to debts, however, it was, as we shall see, held in Wolff v. Oxholm
(6 M. & S. 92) that the confiscation of these by a foreign Govern-
ment was contrary to the law of nations; from which it is to be in-
ferred that such a proceeding would be equally illegal if resorted to
by the British Government. But, subject to this exception, and
where not waived by treaty, the right remains as a formal right, al-
though it would not now be resorted to save in exceptional cases. In
this form the British-American view will not, as we shall see, be
found to differ greatly in its practical results from the nominally
more liberal view adopted by European jurists; private property en-
joying under both systems a virtual immunity from confiscation.
Cobbett pt. II, pp. 54-56.
!
Wolff v. Oxholm, 6 Maule and Selwyn, 92.--This was a case arising
out of an indebtedness of the defendant, a Danish subject, to the
plaintiff, a British subject, on which suit had been brought in Den-
mark, prior to 1807, when war broke out between the two countries.
Thereafter Denmark passed an ordinance in effect confiscating for
the Danish treasury, debts due to British subjects as a result of
which the indebtedness of Oxholm to Wolff was paid to the treasury
and the suit quashed. After the war Oxholm being in England was
sued upon the debt and in the court's opinion it is stated that:
“ It was admitted that, notwithstanding all the violent measures
to which recourse had been had during the extraordinary warfare,
that we have witnessed in our own times, this ordinance of the court
of Denmark stands single and alone, not supported by any precedent,
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
199
nor adopted as an example in any other state. The ordinance itself,
however, so far as we can learn from this case, was not followed up
by any practical measure of compulsion on the subjects of Denmark.
Nothing in the nature of the process against the defendant to enforce
the payment of this particular debt, nothing analogous to the seizure
or condemnation of corporeal things taken in the time of war
occurred on this occasion; and although the commissioners appointed
under the ordinance to receive the sequestered moneys were informed
of this debt as early as the year 1807, yet the defendant did not pay
the money until 1812. An allusion was made in the course of the
argument to a statute in our own country the 34 G. 3, c. 79. This,
however, was not an act of confiscation to the benefit of the state,
but a measure of policy not less generous than lawful, by which at
the same time that the transmission of money to the enemies of the
state was prevented, the money itself was called in, secured and kept
for those to whom it was due, until the return of peace should enable
them to receive it. Considering, therefore, that the right of con-
fiscating debts contended for on the authority of these citations from
Vattel is not recognized by Grotius, and is impugned by Puffendorf
and others, that such confiscation was not general at any period of
time, and that no instance of it, except the ordinance, in question, is
to be found for something more than a century, we think our judg-
ment would be pregnant of mischief to future times, if we did not
declare, that in our opinion, this ordinance, and the payment to the
commissioners appointed under it, do not furnish a defence to the
present action; and if they can not do this of themselves, neither
can they do so by the aid of the proceedings in the Danish court.
The parties went into that court expecting justice, according to the
then existing laws of the country, and are not bound by the quashing
of their suit, in consequence of a subsequent ordinance, not conform-
able to the usage of nations, and which, therefore, they could not
expect, nor are they or we bound to regard."
Postea to the plaintiffs.
Scott's Cases, pp. 496–498.
This decision [Wolff v. Oxholm, 6 M. & S. 92] rests broadly on
the ground that the confiscation by the Danish Government of debts
due to British subjects was a violation of the law of nations; and
that the proceedings founded thereon in the Danish Courts were not,
therefore, binding in the courts of other States. The decision itself
has been the subject of much conflict of opinion. On the one hand,
it is commended and approved as being more strictly in harmony with
existing usage than the decision in Brown v. The United States (8
Cranch, 110); and the wish expressed that the Courts may, if occa-
200
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
sion serves, see their way to apply its principle to tangible as well as
to intangible property. On the other hand, it is said that the judg-
ment is based on statements that are historically erroneous; that the
conclusions deduced from the writings of the publicists are not,
in fact, warrantable; and that the high authority of Story and the
United States Courts was ignored; in view of which it is opined
that if the case were to present itself before a higher Court the de-
cision would be reversed. It is further suggested that it was wrong
to penalize a foreigner for obeying the law of his own country; and
that in such a case the debtor ought to be regarded as discharged, so
long as the amount due was actually paid, and was paid under com-
pulsion and without intent to prejudice the original creditor. The
decision is, no doubt, at variance with the decisions of the American
Courts, which recognize an ultimate right of confiscation as regards
all forms of enemy property found within the jurisdiction, even
though they regard the exercise of such a right as impolitic. If,
moreover, the English law still recognizes an ultimate right of con-
fiscation as regards property that is tangible, it is difficult to see
on what ground of principle debts or intangible property should be
excepted. Nevertheless the decision until reversed must be taken
to represent the rule that, so far, obtains in English law; whilst its
existence may, if the occasion should arise, afford the English
Courts an opportunity of extending in law to other forms of private
property of an innocent character that immunity from confiscation
which they virtually enjoy in practice.
Cobbett, pt. II, pp. 57, 58.
Contra.
Lindo v. Rodney, Doug. 613.—The Court said: “Upon the decla-
ration of war, or hostilities, all the ships of the enemy are detained
in our ports, to be confiscated as the property of the enemy, if no
reciprocal agreement is made.”
Ex Parte Boussmaker, 13 Vesey Jun. 71.-This was a petition by
creditors who were alien enemies to be admitted to prove a debt un-
der a Commission of bankruptcy.
The Court said: “If this had been a debt arising from a contract
with an alien enemy, it could not possibly stand; for the contract
would be void. But, if the two nations were at peace at the date of
the contract, from the time of war taking place the creditor could
not sue; but the contract being originally good, upon the return of
peace the right would revive. It would be contrary to justice, there-
fore, to confiscate this dividend. Though the right to recover is sus-
pended, that is no reason why the fund should be divided among
the other creditors. The point is of great moment, from the analogy
ENEMY PROPERTY IN BELLIGERENT TERRITORY.
201
to the case of an action; and it is true, a court of law would not
take notice of the objection without a plea. It must appear upon
the record.
The policy avoiding contracts with an enemy
is sound and wise; but when the contract was originally good, and
the remedy is only suspended, the proposition, that therefore the
fund should be lost, is very different.
Let the claim be entered; and the dividend reserved.”
The seizure of enemy property by the United States as prize of
war on land, jure belli, is not authorized by the law of nations, and
can be upheld only by an act of Congress.
Moore's Digest, vol. 7, p. 289, citing U. S. v. Seventeen hundred and
fifty-six Shares of Capital Stock, 5 Blatchf. 231.
Hanger v. Abbott, 6 Wallace, 532.—The Court said: “In former
times the right to confiscate debts was admitted as an acknowledged
doctrine of the law of nations, and in strictness it may still be said to
exist, but it may well be considered as a naked and impolitic right,
condemned by the enlightened conscience and judgment of modern
times.”
United States v. Russell, 13 Wall. 623.- In this case it was held
that when private property is impressed into public use during an
emergency, such as war, a contract is implied on the part of the gov-
ernment to make full compensation to the owner.
The Johanna Emilie, Spink's Prize Cases, 54.—The Court said:
If the property was on land, according to the American law, it was
also seizable, and certainly during the American war there were not
wanting instances in which such property was seized and condemned
by law-not by the authority of this court but of another. This rigor
was afterwards relaxed. I believe no such instance has occurred from
the time of the American war to the present day—no instance in which
property inland was subject to search or seizure but no doubt it would
be competent to the authority of the Crown if it thought fit."
But the courts of law have not been unanimous in their judgments
on the subject. The confiscating law of North Carolina and the
sequestrating law of Virginia were held in 1796, by the Supreme
Court of the United States, to have been within the rightful powers
of those states, but to have been annulled by the stipulation in the
treaty of peace of 1783, that creditors on either side should meet with
no lawful impediment to the recovery of the full value of their bona
fide debts.1
1 Hamilton v. Eaton, 2 Martin's North Carolina Reports 83, Scott 481; Ware v. Hylton,
3 Dall. 199. Scott 485.
110678419 -14
202
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
On the other hand the court of King's Bench in 1817, under the
guidance of Lord Ellenborough, exacted payment over again from a
Danish debtor to his British creditor of a debt which he had paid to
the Danish government under its ordinance of 1807, describing the
latter as a measure “not conformable to the usage of nations, and
which therefore they (the parties] could not expect, nor are they or
we bound to regard."i In appreciating this judgment it must be
remembered that, since the date of the American laws, a quarter of a
century filled with numerous European wars had put the court on
firmer ground for declaring the usage of nations in the matter. In
the mean time the Supreme Court of the United States, under the
guidance of Chief Justice Marshall, had held that the outbreak of war
with Great Britain in 1812 did not of itself vest in the United States
government the property in timber on land belonging to British
owners, although it would have been competent to Congress to enact
its confiscation. Lastly Dr. Lushington in 1854, after stating that
during the American war, but not since, there were instances in which
enemy property on land was seized and condemned, not by the court
of admiralty but by those of common law, added that no doubt the
search for or seizure of such property “would be competent to the
authority of the crown if it thought fit.3" My own conclusion is
that the time is now fully ripe when a British court should not lag
behind the position taken by governments, but should boldly follow
Lord Ellenborough.
4
Westlake, pp. 47, 48.
1 Wolff v. Oxholm, 6 M and S. 92, Scott 496.
2 Brown v. United States, & Cranch 1.10, Scott 486.
3 In the Johanna Emilie, Spinks 14, Scott 198. And see what was said by Gibbs,
C. J., in Antoine v. Morshead, below, p. 51.
4 If the inatter came before a British court on a seizure by the crown, since the crown
cannot take property within the realm from its owner by an act of state not grounded
in law, the question would be whether the existence of a state of war amounted to a
license to the crown to seize and appropriate, or, which is the same thing, had already
devested the enemy owner of the property, subject to the condition that only the crown
could take advantage of such devesting. The question of international law would there-
fore arise as well on a British attempt to confiscaté as on one by the enemy government,
and the opinions of Lord Ellenborough and Dr. Lushington would conflict on it. With
regard to the case before Chief Justice Marshall, he evidently considered that under the
constitution congress held the position in the matter which in England is held by the
crown, and consequently that the United States being a party to the suit through the
act of some official was not conclusive as to the line taken by his government, although
congress had by international law a license to direct seizure and appropriation.
WHAT IS ENEMY TERRITORY.
A distinction must be made between an occupation with the ulti-
mate object of conquest and that which is a mere temporary oper-
ation of war. The mere fact that the enemy is in possession of a cer-
tain place will not make it hostile or its inhabitants enemies. The
distinction, which is apparently not recognized by Hall, 1 was estab-
lished in the case of the Gerasimo, a Moldo-Wallachian ship cap-
tured by an English cruiser in 1854. The captor had taken no steps
to obtain an adjudication of the prize when in 1855 the proprietors
sued for its restitution. On behalf of the defendants it was pleaded
that Moldavia, where the proprietors were domiciled, was, at the
moment the Gerasimo set out to sea, occupied by the Russian forces,
and that this was sufficient to fix them with the character of enemies.
The Privy Council, reversing the Judgment of the Court of Ad-
miralty, ruled that, taking into account the character, duration, and
results of the Russian occupation of Moldavia, it was impossible to
hold that Moldavia had ever become incorporated in the Russian
Empire or that its inhabitants had ever become the subjects of
Russia and the enemies of Great Britain. The sole result of the
occupation was a temporary suspension of the suzerainty of the
Porte and this could in no way alter the national character of
the territory. Russia had disavowed all intentions of conquest and
continued to recognize the Moldo-Wallachian flag.
Where military occupation has been made with a view to annexa-
tion, the inhabitants of the territory are considered enemies and
their property at sea is liable to condemnation. Thus in Bentzen v.
Boyle, Marshall, C. J., said that:.
“Although acquisitions made during war are not considered as permanent
until confirmed by a treaty, yet to every commercial and belligerent purpose,
they are considered as a part of the domain of the conquerer, so long as he
retains the possession and government of them.”
There seems to be little doubt that in the converse case, ¿.
log
where
a belligerent is in military occupation of a part of the enemy's terri-
tory, persons domiciled therein will be considered friendly and their
property at sea exempted from condemnation. Such a case has not
yet come before the courts. Hall seems to be mistaken in saying 4
that Lord Stowell ruled in a contrary sense in the Dankbaar Afri-
kaan, for that decision went on entirely different grounds. This
was a vessel belonging to merchants domiciled in the Cape of Good
1 Hall, p. 508.
2 11 Moore, P. C. 115.
51 C. Rob., 107.
39 Cranch, 191.
4 Hall, p. 509.
203
204
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Hope which had started on its voyage before, but was captured after,
the British conquest of the Cape. It was condemned on the sole
ground that as it had sailed a 'Dutch ship its character could not
be altered in transitu. The rule that disregards transfers of owner-
ship in transitu was justified by Lord Stowell by the necessity of
checking fraud. The extension of the doctrine to an involuntary
change of character where fraud was out of the question was un-
justifiable.
Latifi, pp. 77-79.
British and American decisions.
From this decision [The “ Gerasimo,” 1857; 11 Moore, P. C. 88],
as well as from other authorities referred to in the judgment, the
view of the English Courts appears to be-(1) That a temporary oc-
cupation of friendly or British territory by an enemy will not im-
part an enemy character to the territory or its inhabitants, so as to
render the property of the latter liable to maritime capture or to
expose them to those civil and commercial disabilities that attach
to the enemy character. (2) That, conversely, a temporary occupa-
tion of hostile territory by friendly forces will not remove its enemy
character for these purposes, or relieve its inhabitants from their con-
sequent disabilities. Nor, despite some contrary authority, does it
appear that an occupation of enemy territory by British forces would
have any other effect. Nevertheless, so far as relates to carriage of
contraband and trading with the enemy, it would seem that the
fact of an enemy port for which the goods in question were destined
having been meanwhile occupied by British forces will have the effect
of avoiding the offence; for the reason that in either case it is essen-
tial to guilt that the goods should be taken whilst on a destination
for the enemy's use. And the same rule would probably be applied in
cases of blockade. But where territory has been conquered and
definitely appropriated, then both the soil and its inhabitants will be
deemed, for all purposes, to acquire the national character of the con-
quering or annexing State.
In so far as these rules imply that the permanent national charac-
ter of a place and its inhabitants cannot be altered by military occu-
pation, or by anything short of definitive conquest or cession, they
are quite in accord with established principles, and are equally recog-
nized by the courts of other countries. But in so far as they fail to
recognize that even a temporary occupation and control of home or
friendly territory by an enemy will warrant its being treated as hos-
tile for commercial as well as belligerent purposes, they do not ap-
pear to be in keeping with the practical exigencies of war. Nor are
they in accord with the American decisions on this subject. The exi-
gencies of war require that all territory which is under the actual
.
ENEMY TERRITORY.
205
control of the enemy should be subjected to the same restrictions as
regards trade as enemy territory proper, and with the same conse-
quences as regards individuals engaging in such trade; not because
the latter have become personally hostile, but because by their trade
they contribute to the strength and resources of the enemy. Hence
the American Courts, whose decisions on this subject are cited with
approval in the English text-books, whilst fully recognizing that
acquisitions made during the war are not to be considered as perma-
nent unless confirmed by treaty, yet adopt the view that when
either home or friendly territory has passed into the occupation and
control of the enemy, it must be treated as enemy territory, in the
technical sense of the laws of war, for commercial as well as for bel-
ligerent purposes. So, in Bentzen v. Boyle (9 Cranch, 191), it was
held by the United States Supreme Court that the Island of Santa
Cruz, which belonged to Denmark but had during war between that
country and Great Britain been occupied by the latter, must be re-
garded as British and hence as enemy territory for all the purposes
of the war then proceeding between Great Britain and the United
States; and that the produce of estates owned there, even by a person
resident in a neutral country, must, if still remaining in the hands of
the owners of the soil, be treated as enemy property and as liable to
capture on the sea by the United States. If an enemy occupation of
national or friendly territory confers a hostile character, it would
seem to follow that a national or friendly occupation of enemy ter-
ritory must free it from its enemy character. Nevertheless it was
held in the case of The Circassian (2 Wall. 135) that the capture
and occupation by the United States forces of the city and port of
New Orleans, which they had previously held under blockade, did
not have the effect of suspending its enemy character or of terminat-
ing the blockade; and hence that a British vessel which had entered
the port after the occupation was still liable to condemnation. This
decision, however, afterwards became the subject of a claim before
the British and American Claims Commission, which made awards
in favour of the claimants to the extent of $225,000.
Cobbett, pt. II, pp. 32–34.
Enemy Territory. The question of what constitutes enemy terri-
tory is important, first, as determining the range of military and
naval operations, and the legality of hostile captures, in so far at
least as these are forbidden within neutral territory and waters. For
this purpose enemy territory will include(1) territory owned by
the enemy State, including all territorial waters and attendant areas,
as ascertained by the principles and methods previously referred to;
(2) territory leased or held in usufruct by the enemy State, or in-
206
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
cluded within the limits of its colonial protectorates; (3) territory
occupied and administered by the enemy State, either permanently or
for an indefinite period, even though the nominal sovereignty may
remain in some other power; (4) territory held by the enemy State
jointly with any other Power, provided the actual control and exer-
cise of authority are vested in the former; and, finally, (5) territory
which, although otherwise friendly, has been temporarily occupied
by, and is under the present control of, the enemy. In the second
place, both in the British and other systems which adopt the criterion
of domicile as a test of enemy character in war, the question of what
constitutes enemy territory is, as we have seen, important as deter-
mining the commercial disabilities of persons domiciled there and
the liability of their property to maritime capture. The nature of the
rules applied in this connection have already been sufficiently indi-
cated.
Cobbett, pt. II, pp. 34, 35.
“On the first day of September, 1814, Castine was captured by the
enemy, and remained in his exclusive possession, under the command
and control of his military and naval forces, until the ratification of
the treaty of peace in February, 1815. During this period the British
Government exercised all civil and military authority over the place,
and established a custom-house and admitted goods to be imported,
according to regulations prescribed by itself, and, among others, ad-
mitted the goods upon which duties are now demanded. These goods
remained at Castine until after it was evacuated by the enemy, and
upon the reestablishment of the American Government the collector
of the customs, claiming a right to American duties on the goods,
took the bond in question from the defendant for the security of
them.
“Under these circumstances, we are of opinion that the claim for
duties can not be sustained. By the conquest and military occupation
of Castine
the sovereignty of the United States over the
territory was, of course, suspended, and the laws of the United States
could no longer be rightfully enforced there, or be obligatory upon
the inhabitants who remained and submitted to the conquerors. By
the surrender the inhabitants passed under a temporary allegiance
to the British Government, and were bound by such laws, and such
only, as it chose to recognize and impose.
* Castine was there-
fore, during this period, so far as respected our revenue laws, to be
deemed a foreign port, and goods imported into it by the inhabitants
were subject to such duties only as the British Government chose to
require. Such goods were, in no correct sense, imported into the
United States. The subsequent evacuation by the enemy, and re-
*
ENEMY TERRITORY.
207
sumption of authority by the United States, did not, and could not,
change the character of the previous transactions."
Moore's Digest, vol. 1, p. 45; Mr. Justice Story, delivering the opinion
of the court, United States v. Rice (1819), 4 Wheaton, 246.
Mr. Justice Story had previously held, on circuit, that Castine, while
occupied by the British, was a “foreign port” in respect of the non-
importation acts. (United States v. Hayward (1815), 2 Gallison,
485.)
The rights of the military occupant are discussed by Attorney-General
Berrien, 2 Op. 321 (1830), and by Attorney-General Black, 9 Op.
140 (1858).
*
On the other hand, it was held that goods imported into the United
States from Tampico, Mexico, in 1847, while that port was in the
military occupation of the American forces, were subject to duties
under the revenue laws as goods imported from a foreign country. It
was true, said the court, “ that, when Tampico had been captured, and
the State of Tamaulipas subjugated, other nations were bound to re-
gard the country, while our possession continued, as the territory of
the United States, and to respect it as such.
But yet it was
not a part of this Union. *
The boundaries of the United States, as they existed when war
was declared against Mexico, were not extended by the conquest.
They remained unchanged. And every place' which was out
of the limits of the United States, as previously established by the
political authorities of the Government, was still foreign; nor did
our laws extend over it."
Moore's Digest, vol. 1, p. 46; Fleming v. Page (1850), 9 How. 603.
By the law of nations a conquered territory is subject to be gov-
erned by the conqueror during his military possession, and until there
is either a treaty of peace, or he shall voluntarily withdraw from it.
The old civil government being necessarily superseded, it is the right
and duty of the conqueror to secure his conquest, and to provide for
the maintenance of civil order and the rights of the inhabitants.
This right has been exercised and this duty performed by our mili-
tary and naval commanders, by the establishment of temporary gov-
ernments in some of the conquered provinces in Mexico, assimilating
them as far as practicable to the free institutions of our own country.
In the provinces of New Mexico and California, little if any further
resistance is apprehended from the inhabitants to the temporary gov-
ernments which have thus, from the necessity of the case and accord-
ing to the laws of war, been established. It may be proper to pro-
vide for the security of these important conquests by making an ade-
quate appropriation for purpose of erecting fortifications and de-
208
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
fraying the expenses necessarily incident to the maintenance of our
possession and authority over them."
Moore's Digest, vol. 1, p. 46; President Polk's second annual message,
1846.
In prosecuting a foreign war thus duly declared by Congress, we
have the right, by conquest and military occupation, to acquire pos-
session of the territories of the enemy, and during the war, to exer-
cise the fullest rights of sovereignty over it. The sovereignty of the
enemy is in such case 'suspended,' and his laws can no longer be
rightfully enforced' over the conquered territory, 'or be obligatory
upon the inhabitants who remain and submit to the conqueror. By
the surrender the inhabitants pass under a temporary allegiance' to
the conqueror, and are bound by such laws, and such only, as he
may choose to recognize and impose. "From the nature of the case,
no other laws could be obligatory upon them; for where there is no
protection, or allegiance, or sovereignty, there can be no claim to
obedience. These are well-established principles of the laws of war,
as recognized and practised by civilized nations; and they have been
sanctioned by the highest judicial tribunal of our own country.”
Moore's Digest, rol. 1, pp. 46, 47; President Polk's special message,
July 24, 1848.
The port of San Francisco was occupied by the United States as
early as 1846. “Shortly afterward, the United States had military
possession of all of Upper California. Early in 1847, the President,
as constitutional commander in chief of the Army and Navy author-
ized the military and naval commander of our forces in California to
exercise the belligerent rights of a conqueror, and to form a civil
government for the conquered country, and to impose duties on im-
ports and tonnage as military contributions for the support of
the government and of the army which had the conquest in pos-
session.
No one can doubt that these orders of the President, and the action
of our Army and Navy commander in conformity with them, were
according to the law of arms and the right of conquest, or that they
were operative until the ratification and exchange of a treaty of
peace. Such would be the case upon general principles in respect to
war and peace between nations. In this instance it is recognized by
the treaty itself."
Moore's Digest, vol. 1, p. 47, citing Cross v. Harrison, 16 How. 190.
The proclamation of General Butler at New Orleans, dated the
1st and published on the 6th of May, 1862, announcing that “all
rights of property” would be held “inviolate, subject only to the laws
ENEMY TERRITORY.
209
of the United States;" and that “all foreigners not naturalized,
claiming allegiance to their respective governments, and not having
made oath of allegiance to the government of the Confederate
States," would be “protected in their persons and property as here-
tofore under the laws of the United States," did but reiterate the
rules established by the legislative and executive action of the Na-
tional Government; and vessels and cargoes belonging to citizens of
New Orleans, or neutrals residing there, and not affected by any at-
tempts to run the blockade, or by any act of hostility against the
United States, were protected by that proclamation, though such
persons, by being identified with the enemy by long voluntary resi-
dence and business relations, may have been “enemies” within the
meaning of the expression as used in public law.
Moore's Digest, vol. 1, p. 47; The Venice, 2 Wallace, 258.
The Danckebaar Africaan, 1 C. Rob. 107, 111.—Sir W. Scott said:
“On appeal, however, the lords were of opinion, that property sailing
after declaration of hostilities, but before a capitulation, and taken
on the voyage, was not protected by the intermediate capitulation.
It was not determined on any ground of illegal trade, nor on any
surmise, that when the owners became British subjects, the trade in
which the property was embarked, became, ex post facto, illegal; nor
was it at all taken into consideration, that Demarara had again be-
come a Dutch colony at the time of adjudication. It was declared to
be adjudged on the same principles as if the cause had come on at
the time of capture. It was not on any of these grounds, but simply
on the ground of Dutch property, that condemnation passed in that
case. I remember a dictum of a great law lord then present, Lord
Cambden, 'that the ship sailed as a Dutch ship, and could not change
her character in transitu.
The Fama, 5 C. Rob. 106, 119.—This was a question respecting the
national character of Louisiana, whether it was, at the time of cap-
ture, May, 1803, to be considered as a Spanish settlement, or as be-
longing to France, by reason of the treaty of 1796, by which it was
ceded to that country. The question arose on the claim of a mer-
chant, resident of New Orleans, for property taken, May, 1803, on
a voyage from New Orleans to Havre de Grace.
Sir W. Scott said: “On the whole of this evidence I am led to
conclude, either that Mr. Laussart was not the person authorized to
take possession, or that the act of cession had from some causes been
deferred. In this situation of things, it appears to me, upon the
grounds before stated, that the colony must be considered as continu-
ing, at the time of capture, under the dominion of Spain, and conse-
210
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
quently that these persons, as Spanish subjects, are entitled to resti-
tution."
Santa Anna, 1 Edw. Rep. 180.—Sir William Scott said (pp.
181–182): “I think it is clearly the intention of the government of
this country, publicly expressed, that all Spanish property should be
treated with the utmost possible tenderness. The order in council
of the 4th July, 1808, declares that all hostilities against Spain, on
the part of his majesty, shall immediately cease;' here, then, is a
total extinction of hostilities proclaimed, without any exception or
limitation whatever. In the third and fourth articles of the same order
it is provided, that all ships and vessels belonging to Spain shall
have free admission into the ports of his majesty's dominions, as be-
fore the present hostilities; and that all ships and vessels belonging
to Spain, which shall be met with by any of his majesty's ships and
cruisers, shall be treated in the same manner as the ships of states
in amity with his majesty.' Here, again, is no restrictive distinction
of particular parts of Spain, but peace and amity are proclaimed
generally with that country, in exactly the same terms as would have
been employed in a definitive treaty. Under these public declarations
of the state, establishing this general peace and amity, I do not
know that it would be in the power of this court to condemn Spanish
property, though belonging to persons resident in those parts of
Spain which are at the present moment under French control, ſex-
cept] under such circumstances as would justify the confiscation of
neutral property. The order in council appears to be framed under
the impression that the general disposition of the inhabitants is
friendly to this country, and that this disposition is only overruled
by the effect of French force in particular districts. In the cases
of the property of such persons taken, the court would, I think, be
at most inclined to suspend its judgment for the present, under the
authority of this general declaration, and wait till some more pre-
cise rule was framed by proper authority, or till length of time and
duration of French possession furnished a rule that might apply
to such cases, though not specifically distinguished in the terms of
the order. In the present case I see no sufficient reason for an un-
favourable hesitation of judgment."
**
*
“The evidence, therefore, of a destination to Cadiz strongly pre-
ponderates; and taking the fact to be so, what is this case, but that
of subjects of a country with which a general amity had been pro-
claimed, serving the common cause of the allied countries, by carry-
ing military stores to one of the strongholds occupied on behalf of
that cause, from a port happening to be subject to the prevalence
of French arms in its immediate neighbourhood. Be the residence of
the parties what it may, (for it does not very distinctly appear,) I
ENEMY TERRITORY.
211
can have no hesitation in restoring property so employed to persons
manifesting such dispositions."
Hagedorn v. Bell, 1 Maule & Selwyn, 450.—Lord Ellenborough,
C. J., said: “Here the only question is, whether the plaintiffs have an
insurable interest; and that depends upon whether the persons, in
whom the interest is averred, are to be considered as persons engaged
in a legitimate commerce, and therefore capable of being protected
by this insurance. The State of Hamburg is particularly detailed
on the facts set forth in this case. It states that, notwithstanding
the military occupation of Hamburg by an overwhelming French
force, all the powers of civil government were administered in the
same manner as they had formerly been before the arrival of the
French, and I know of no case where a country maintaining its civil
government proprio jure, has been considered as conquered. That
Hamburg was, at the time when this insurance was effected, under
French dominion, and had committed acts to warrant this country
to consider her as hostile, there can be little doubt; for the flag of
the British Government was at that time excluded, in compliance
with the wishes and in furtherance of the policy of the enemy. But
assuming that the exclusion of the flag of any State amounts to an
act which would justify hostility between the excluding nation and
that whose flag is excluded, still it belongs to every State to pro-
nounce upon the continuance either of amity, hostility, or neutrality
as between itself and any other State. Neutrality, according to the
strict definition of it given by the writer upon public law, rather im-
ports the duty which a neutral owes to a belligerent than the relative
situation in which that belligerent chooses to place her. But as it
rests with every belligerent to determine, according to its views of
expediency, in what way it will deal with neutrals who have acted
in violation of their duty, neutrality, therefore, in a more enlarged
sense, may signify that permitted relation between any two States
after the right to its continuance has been forfeited by one of them.
Nations may be at war with each other by reciprocal acts of hostility
done and suffered, but they are not bound to take up every cause of
just offence, nor are they of necessity to be considered as hostile to
each other, if there be a sort of condonation on the one side for the
purpose of continuing commerce with the other who has given just
cause of offence.. It will be found also, that writers on the law of na-
tions in treating of neutrality, have been led rather to examine what
a belligerent is warranted in doing than what it is compelled to do.
If, for instance, notwithstanding a just cause of war, a nation should
still deem it expedient, considering the convulsed state of the com-
merce of Europe, to continue its connection with any other State, it
is at liberty so to do. Now, it appears that this country, finding
212
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
certain other countries overpowered by French force, still felt de-
sirous of maintaining with them its ancient relations of peace and
amity, and with that view chose not to enforce against them the
rigours of war, but to consider the inhabitants of those countries as
persons with whom commerce might still be carried on. The rela-
tion, in which they have been placed at different times, has varied
according to circumstances. But the actual relation of this country
with respect to Hamburg is to be taken from the last Order in Council
subsisting when this adventure was launched. I have already stated
that this is not an abstract question, whether Hamburg might have
been deemed at war with this country, but that the question is, how
the Government of this country has chosen to treat her acts. Keep-
ing these observations in mind, let us look at the Orders of Council,
with a view to ascertaining in what relation Hamburg stood with
respect to this country on the 18th of August, 1810."
*
*
It seems to me therefore that under these circumstances we
are to look at what the Government of this country has chosen
to consider as neutral, and that it must be taken that it chose to
consider as such those countries with whom it has permitted trade.
If the Order of the 11th of November, 1807, had stood, Hamburg
could no longer have been considered as in a state of amity, owing
to the effect given in that Order to the exclusion of the British flag.
I am not here pronouncing that the exclusion of the flag of a country
amounts on all occasions to an act of hostility. The mere exclusion
of trade does not necessarily import an indication of a hostile inten-
tion, still less does it hostility itself. We know that there exists in
some countries a great jealousy of admitting strangers into their
ports. China affords an instance of this kind, and yet she is not
deemed an enemy on that account. Here this country has, by the
effect of these Orders, placed Hamburg in different relations at dif-
ferent periods. In November, 1807, we find her treated as hostile;
afterwards it was thought expedient to alter her relative situation,
and to recognise her inhabitants as persons with whom trade might
be carried on; and their ships and goods were released from confisca-
tion and condemnation. From this review of the several Orders in
Council, seeing nothing to render the inhabitants of Hamburg hos-
tile, or persons with whom trade might not lawfully be carried on,
it is unnecessary to look to the license, for under these circumstances
no licence was necessary. This case presents this point, and this
alone, whether the persons in whom the interest is averred can be pro-
tected by this policy, which depends on this, whether the trade was
legal. I think, for the reasons already given, that they may be pro-
tected. We thought it better to dispose of this question by itself in
order to lay a foundation for deciding other cases, and to relieve our-
ENEMY TERRITORY.
213
selves from a complication of questions. Upon the whole I am of
opinion that the plaintiff is entitled to recover on the interest averred,
it not being an interest in any manner hostile."
Trotter, pp. 103–106.
The Foltina, 1 Dodson, 450.——This was the case of a ship and cargo
seized on the 15th of December, 1811, whilst lying at anchor in the
roadstead of Heligoland, which island had been surrendered to his
Majesty's forces on the 5th of September, 1807. The question was,
whether the ship and cargo should be condemned as droits of ad-
miralty or otherwise.
Sir W. Scott said (pp. 451, 452):“But the chief point to be consid-
ered is, whether, at the time this seizure was made, Heligoland formed
part of the dominions of the crown of Great Britain or not. The
island, it appears, had been conquered and taken possession of by
British forces, but the conquest had not been confirmed to this
country by a treaty of peace. It was a firm capture in war, but was
still subject to a kind of latent title in the enemy, by which he might
have recovered it at the conclusion of the war, provided this country
would have consented to its restitution.
“It is somewhat extraordinary that, in the course of the numerous
and long wars in which this country has been engaged, no case should
have been determined which might serve as a guide to the court in the
decision of the present question.
“ The power of the British government was full and complete;
and, though the Lords Commissioners of the Admiralty might not
have interposed the particular authority with which they are invested,
yet the crown had exercised its authority, and the admiralty, as the
grantee of the crown, would succeed to its rights. It might have
erected a court there, for the exercise of admiralty jurisdiction; and,
if it did not, I presume that it only refrained from so doing because
it was not thought that public convenience required it. The enemy
certainly had no right to say that a court of that kind should not be
there erected. Under the circumstances, I think there is no solid
ground for the distinction that has been taken; and though I am by
no means disposed, at this time of day, to enlarge the bounds of the
ancient grant from the crown to the Lord High Admiral, which is
now become of less consequence, yet it is the duty of the court to
maintain ancient landmarks. I shall pronounce for the claim of the
admiralty, and condemn this ship as droits of admiralty.”
Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191, 195, 197.
Marshall, C. J., said: “The island of Santa Cruz, belonging to the
kingdom of Denmark, was subdued, during the late war, by the
arms of his Britannic majesty. Adrian Benjamin Bentzen, an of-
ficer of the Danish government, and a proprietor of land therein,
withdrew from the island, on its surrender, and has since resided in
1
214
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Denmark. The property of the inhabitants being secured to them,
he still retained his estate in the island, under the management of
an agent, who shipped thirty hogsheads of sugar, the product of that
estate, on board a British ship, to a commercial house in London,
on account and risk of the said A. B. Bentzen. . On her passage,
she was captured by the American privateer, the Comet, and brought
into Baltimore, where the vessel and cargo were libelled as enemy
property. A claim for these sugars was put in by Bentzen; but
they were condemned with the rest of the cargo; and the sentence
was affirmed in the circuit court. The claimant then appealed to this
court.
Some doubt has been suggested, whether Santa Cruz, while in the
possession of Great Britain, could properly be considered as a British
island. But, for this doubt there can be no foundation. Although
acquisitions made during war are not considered as permanent, until
confirmed by treaty, yet, to every commercial and belligerent pur-
pose, they are considered as a part of the domain of the conqueror,
so long as he retains the possession and government of them. The
island of Santa Cruz, after its capitulation, remained a British
island, until it was restored to Denmark.
“ This rule laid down with so much precision, does not, it is con-
tended, embrace Mr. Bentzen's claim, because he has not 'incorpo-
rated himself with the permanent interests of the nation. He ac-
quired the property, while Santa Cruz was a Danish colony, and he
withdrew from the island when it became British. This distinction
does not appear to the court to be a sound one. The identification
of the national character of the owner with that of the soil, in the
particular transaction, is not placed on the disposition with which
he acquires the soil, or on his general character. The acquisition
of land in Santa Cruz binds him, so far as respects that land, to the
fate of Santa Cruz, whatever its destiny may be. While that island
belonged to Denmark, the produce of the soil, while unsold, was,
according to this rule, Danish property, whatever might be the gen-
eral character of the particular proprietor. When the island be-
came British, the soil and its produce, while that produce remained
unsold, were British. The general commercial or political character
of Mr. Bentzen could not, according to this rule, affect this par-
ticular transaction. Although incorporated, so far as respects his
general character, with the permanent interests of Denmark, he was
incorporated, so far as respects his plantation in Santa Cruz with
the permanent interests of Santa Cruz, which was, at that time,
British; and though, as a Dane, he was at war with Great Britain,
and an enemy, yet, as a proprietor of land in Santa Cruz, he was no
enemy; he could ship his produce to Great Britain in perfect safety."
ENEMY TERRITORY.
215
:
United States v. Rice, 4 Wheaton 246, 254.–Story, J., said: “By
the conquest and military occupation of Castine, the enemy ac-
quired that firm possession which enabled him to exercise the fullest
rights of sovereignty over that place. The sovereignty of the United
States over the territory was, of course, suspended, and the laws of
the United States could no longer be rightfully enforced there, or be
obligatory upon the inhabitants who remained and submitted to
the conquerors. By the surrender, the inhabitants passed under a
temporary allegiance to the British government, and were bound
by such laws, and such only, as it chose to recognise and impose.
From the nature of the case, no other laws could be obligatory upon
them; for where there is no protection, or allegiance, or sovereignty,
there can be no claim to obedience. Castine was, therefore, during
this period, so far as respected our revenue laws, to be deemed a
foreign port; and goods imported into it by the inhabitants were
subject to such duties only as the British government chose to re-
quire. Such goods were, in no correct sense, imported into the United
States."
Fleming. et al. v. Page, 9 Howard, 603, 615.—Taney, C. J., said:
" It is true, that, when Tampico had been captured, and the State of
Tamaulipas subjugated, other nations were bound to regard the
country, while our possession continued, as the territory of the United
States, and to respect it as such. For, by the laws and usages of
nations, conquest is a valid title, while the victor maintains the ex-
clusive possession of the conquered country. The citizens of no other
nation, therefore, had a right to enter it without the permission of
the American authorities, nor to hold intercourse with its inhabitants,
nor to trade with them. As regarded all other nations, it was a part
of the United States, and belonged to them as exclusively as the
territory included in our established boundaries. But yet it was not
a part of this Union. For every nation which acquires territory
hy treaty or conquest holds it according to its own institutions and
laws.
And the country from which these goods were im-
ported was invaded and subdued, and occupied as the territory of a
foreign hostile nation, as a portion of Mexico, and was held in pos-
session in order to distress and harass the enemy."
The Gerasimo, 11 Moore's P. C. 88, Scott's Cases, pp. 812–815.-
Leigh, J., said: "Now the question is, what are the circumstances
necessary to convert friendly or neutral territory into enemy's terri-
tory? For this purpose, it is sufficient that the territory in question
should be occupied by a hostile force, and subject, during its occu-
pation, to the control of the hostile power, so far as such power may
think fit to exercise control; or is it necessary that, either hy cession
216
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
or conquest, or some other means, it should, either permanently or
temporarily, be incorporated with, and form part of, the dominions
of the invader at the time when the question of national character
arises ?
“It appears to their lordships that the first opposition cannot be
maintained. It is impossible for any judge, however able and
learned, to have always present to his mind all the nice distinctions
by which general rules are restricted; and their lordships are in-
clined to think that if the authorities which were cited and so ably
commented upon at this bar had been laid before the judge of the
court below, he would, perhaps, have qualified in some degree the
doctrine attributed to him in the judginent to which we have referred.
“With respect to the meaning of the term 'dominion of the enemy,
and what is necessary to constitute dominion, Lord Stowell has in
several cases expressed his opinion. In the case of The Fama, 5 Rob.
115, he lays it down that in order to complete the right of property
there must be both right to the thing and possession of it; both jus
al rem and jus in re. This,' he observes, 'is the general law of
property, and applies, I conceive, no less to the right of territory
than to other rights. Even in newly discovered countries, when a
title is meant to be established for the first time, some act of posses-
sion is usually done and proclaimed as a notification of the fact. In
transfer, surely, when the former rights of others are to be super-
seded and extinguished, it cannot be less necessary that such a change
should be indicated by some public acts, that all who are deeply in-
terested in the event, as the inhabitants of such settlements, may be
informed under whose dominion and under what laws they are to
live.'
“The importance of this doctrine will appear when the facts with
l'espect to the occupation of the principalities come to be examined.
That the national character of a place is not changed by the mere
circumstance that it is in possession and under the control of a hostile
force, is a principle held to be of such importance that it was acted
upon by the lords of appeal in 1808, in the St. Domingo cases of the
Dart and Happy Couple, when the rule operated with extreme
hardship.
In the case of The Manilla, 1 Edw. 3, Lord Stowell gives the fol-
lowing account of those decisions: 'Several parts of it (the island
of St. Domingo) had been in the actual possession of insurgent
negroes, who had detached them, as far as actual occupancy could
do, from the mother country of France and its authority, and main-
tained, within those parts, at least, an independent government of
their own. And although this new power had not been directly and
formally recognized by an express treaty, the British Government
had shown a favorable disposition towards it on the ground of its
60
ENEMY TERRITORY.
217
common opposition to France, and seemed to tolerate an intercourse
tliat carried with it a pacific and even friendly complexion. It was
contended, therefore, that St. Domingo could not be considered as a
colony of the enemy. The court of appeal, however, decided, though
after long deliberation, and with much expressed reluctance, that
nothing had been done or declared by the British Government that
could authorize a British tribunal to consider this island generally,
or parts of it (notwithstanding a power hostile to France had estab-
lished itself within it, to that degree of force, and with that kind of
allowance from some other states), as being other than still a colony
of the enemy. There can be no doubt that the strict principle of the
decision was correct.'
“On the other hand, when places in a friendly country have been
seized by, and are in the possession of the enemy, the same doctrine
has been held.
“While Spain was in the occupation of France, and at war with
Great Britain, the Spanish insurrection broke out, and the British
Government issued a proclamation that all hostilities against Spain
should immediately cease. Great part of Spain, however, was still
occupied by French troops, and amongst others, the port of St.
Andero.. A ship called the Santa Anna was captured on a voyage,
as it was alleged, to St. Andero, and Lord Stowell (1 Edw. 182)
observed: Under these public declarations of the state, establishing
this general peace and amity, I do not know that it would be in
the power of the court to condemn Spanish property, though be-
longing to persons resident in those parts of Spain which are at the
present moment under French control, except under such circum-
stances as would justify the confiscation of neutral property.'
The same principle has been acted upon in the courts of common
law.
“In the case of Donaldson v. Thompson, 1 Campb. 429, the Rus-
sian troops were in possession of Corfu and the other Ionian Islands,
though the form of a republic was preserved, and it was contended
that the islands must be considered as substantially part of the
territory of the Russian Empire, if the Russian power was there
dominant, and the supreme authority was in the Russian com-
mander; or, if not, that the republic must be considered as a co-
belligerent with Russia against the Porte, since the Emperor of
Russia derived the same advantages, in a military point of view,
from this occupation of the islands as if he had seized it hostilely,
or the Ionian republic had been his ally in the war he was carrying
Both these propositions, however, were repudiated by Lord
Ellenborough; and afterwards, on a motion to set aside the verdict
by the court of King's Bench, Lord Ellenborough observed: “Will
any one contend that a government which is obliged to yield in any
C.
110678419-15
01.
218
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
quarter to a superior force becomes a co-belligerent with the power
to which it yields? It may as well be contended that neutral and
belligerent mean the same thing.' The same doctrine was after-
wards laid down by the Court of King's Bench, in Hagedorn v. Bell,
1 Mau. and Sel. 450, in the case of a trade carried on with Hamburg,
which had been for several years, and at the time was in the military
occupation of the French.
“The distinction between hostile occupation and possession clothed
with a legal right by cession or conquest, or confirmed by length of
time, is recognized by Lord Stowell in the case of The Bolletta,
1 Edw. 171. A question there arose whether certain property be-
longing to merchants at Zante, which had been captured by a British
privateer, was to be considered as French or as Russian property,
that question depending upon the national character of Zante at
the time of the capture. Lord Stowell observes, p. 173: On the
part of the Crown it has been contended that the possession taken
by the French was of a forcible and temporary nature, and that
such possession does not change the national character of the country
until it is confirmed by a formal cession, or by long lapse of time.
That may be true, when possession has been taken by force of arms
and by violence; but this is not an occupation of that nature. France
and Russia had settled their differences by the treaty of Tilsit, and
the two countries being at peace with each other, it must be under-
stood to have been a voluntary surrender of the territory on the part
of Russia.' On this ground he held the territory to have become
French territory, remarking in a subsequent passage of his judgment
that this was a cession by treaty, and not a hostile occupation by
force of arms, liable to be lost again the next day.
“These authorities, with the other cases cited at the bar, seem to
establish the proposition, that the mere possession of a territory by
an enemy's force does not of itself necessarily convert the territory
so occupied into hostile territory, or its inhabitants into enemies.”
From the numerous decisions of the Supreme Court, beginning
with the Prize Cases, 2 Black. 635, and ending with Williams v.
Bruffy, 96 U. S. 176, and Dewing v. Perdicaries, Id. 193, the fol-
lowing propositions are plainly to be deduced:
“1. The district of country declared by the constituted authorities,
during the late civil war, to be in insurrection against the Govern-
ment of the United States, was enemy territory, and all the people
residing within such district were, according to public law, and for
all purposes connected with the prosecution of the war, liable to be
treated by the United States, pending the war and while they re-
mained within the lines of the insurrection, as enemies, without refer-
ence to their personal sentiments and dispositions.
ENEMY TERRITORY.
219
“2. There was no legislation of the Confederate congress which
this court can recognize as having any validity against the United
States, or against any of its citizens, who, pending the war, resided
outside of the declared limits of the insurrection.
“ The Confederate government is to be regarded by the courts as
simply the military representative of the insurrection against the
authority of the United States.
“To the Confederate army was, however, conceded, in the interest
of humanity, and to prevent the cruelties of reprisals and retaliation,
such belligerent rights as belonged under the laws of nations to the
armies of independent governments engaged in war against each
other; that concession placing the soldiers and officers of the rebel
army, as to all matters directly connected with the mode of prose-
cuting the war, 'on the footing of those engaged in lawful war, and
exempting them from liability for acts of legitimate warfare.'»
(Ford. v. Surget (1878), 97 U. S. 594, 604, holding that a statute of
the Confederate congress could have, as an act of legislation, no
force whatever in any court recognizing the Federal Constitution as
the supreme law of the land.
Moore's Digest, vol. I, p. 57.
The Adula, 176 U. S. 361, 368.-Mr. Justice Brown said: “But it
s contended that at the time of the capture, the port of Guantanamo
was completely in the possession and control of the United States,
and therefore that the blockade had been terminated. It appears,
however, that Guantanamo is eighteen miles from the mouth of
Guantanamo Bay. Access to it is obtained either by a small river
emptying into the upper bay, or by rail from Caimanera, a town
on the west side of the upper bay. It seems that the Marblehead
and the Yankee were sent to Guantanamo on June 7; entered the
harbor and took possession of the lower bay for the use of American
vessels; that the Panther and Yosemite were sent there on the 10th,
and on the 12th the torpedo boat Porter arrived from Guantanamo
with news of a land battle, and from that time the harbor was occu-
pied by naval vessels, and by a party of marines who held the crest
of a hill on the west side of the harbor near its entrance, and the
side of the hill facing the harbor. But the town of Guantanamo, ,
near the head of the bay, was still held by the Spanish forces, as
were several other positions in the neighborhood. The campaign in
the vicinity was in active progress, and encounters between the
United States and Spanish troops were of frequent occurrence.
“ In view of these facts we are of opinion that, as the city of Guan-
tanamo was still held by the Spaniards, and as our troops occupied
only the mouth of the bay, the blockade was still operative as against
vessels bound for the city of Guantanamo.”
EFFECT OF WAR ON TREATIES.
And it is declared, that neither the pretence that war dissolves
all treaties, nor any other whatever, shall be considered as annulling
or suspending this and the next preceding article; but, on the con-
trary, that the state of war is precisely that for which they are
provided, and during which they are to be as sacredly observed as
the most acknowledged articles in the law of nature and nations.
Treaty of Amity and Commerce of 1799 between the United States and
Prussia, Article XXIV.
And it is declared that neither the pretence that war dissolves.
all treaties, nor any other whatever, shall be considered as annulling
or suspending the solemn covenant contained in this article. On the
contrary, the state of war is precisely that for which it is provided;
and, during which, its stipulations are to be as sacredly observed
as the most acknowledged obligations under the law of nature or
nations.
Treaty of Peace, Friendship, Limits, and Settlement of 1848 between
the United States and Mexico, Article XXII.
And it is declared that neither the pretence that war dissolves
treaties, nor any other whatever, shall be considered as annulling or
suspending this article; but, on the contrary, that the state of war is
precisely that for which it is provided, and during which its pro-
visions are to be sacredly observed as the most acknowledged obliga-
tions in the law of nations.
Treaty of Commerce and Navigation of 1871 between the United States
and Italy, Article XXI.
All treaties, agreements, conventions and contracts between the
United States and Spain prior to the Treaty of Paris shall be ex-
pressly abrogated and annulled, with the exception of the treaty
signed the seventeenth of February 1834 between the two countries,
for the settlement of claims between the United States of America
and the Government of His Catholic Majesty, which is continued in
force by the present Convention.
Treaty of Friendship and General Relations of 1902 between the
United States and Spain, Article XXIX.
ARTICLE 1. The opening and the carrying on of hostilities shall
have no effect upon the existence of treaties, conventions and agree-
ments, whatever be their title and subject, concluded between them-
220
EFFECT OF WAR ON TREATIES.
221
selves by belligerent States. The same is true of the special obliga-
tions arising from the said treaties, conventions and agreements.
ARTICLE 2. War, however, automatically terminates:
1. Agreements of international associations, treaties of protection,
control, alliance, guaranty; treaties concerning subsidies, treaties
establishing a right of security or a sphere of influence, and, gen-
erally, treaties of a political nature;
2. All treaties, the application or the interpretation of which
shall have been the direct cause of the war, in consequence of the
official acts of either of the governments before the opening of
hostilities.
ARTICLE 3. In applying the rule set forth in Article 2, account
must be taken of the contents of the treaty. If, in the same act,
occur clauses of different kinds, only those shall be considered an-
nulled which come under the categories enumerated in Article 2.
When, however, the treaty is of the character of an indivisible act,
it terminates as a whole.
ARTICLE 4. The treaties which remain in force and the carrying
out of which is still, in spite of hostilities, practically possible, shall
be observed as in the past. Belligerent States may not disregard
them except to the degree and for the time required by the necessities
of war.
ARTICLE 5. Treaties which have been concluded for the contingency
of war are not covered by Articles 2, 3 and 4.
ARTICLE 6. Aside from the responsibility that would be incurred
by the violation of these rules, they should serve to interpret the
silence of and to supply the omissions in a treaty of peace. In default
of a formal clause to the contrary in a peace treaty, it shall be
decided :
1. That treaties affected by the war are definitely annulled;
2. That treaties not affected by the war, whether suspended or not
during the progress of hostilities, are tacitly confirmed;
3. That treaties the clauses of which conflict with the contents of
the peace treaty are nevertheless implicitly abrogated;
4. That the abrogation of a treaty, express or tacit, has no retro-
active effect.
ARTICLE 7. The provisions of Articles 1 to 6 shall apply, in the
relations between belligerent. States, to treaties concluded between
them and a third State, with the following reservations.
ARTICLE 8. When the obligations which bind belligerent States in
their relations with each other have the same object as their con-
tracts with a third state, they shall be carried out in the interest of
the latter. Thus collective treaties of guaranty shall remain in force
in spite of war between two of the contracting States.
222
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE. .
ARTICLE 9. Collective agreements shall remain in force in the
relations of each of the belligerent States with the third contracting
State.
They may not be altered by a treaty of peace to the detriment of
the third contracting State, without the participation or the consent
of the latter:
ARTICLE 10. Treaties concluded between a belligerent State and a
third State are not affected by the war.
ARTICLE 11. In default of a formal clause to the contrary or of
a provision leaving no doubt as to the intention of the parties, col-
lective treaties relating to the law of war apply only if the belliger-
ents are all contracting parties.
Institute (1912), pp. 172-174.
Abrogation of treaties by war.
It was at one time an international custom that the Belligerents
should, at the breaking of War, make a public and solemn proclama-
tion that the obligations of Treaties between them had ceased. That
custom has become obsolete. In the place of it has arisen the general
maxim, that War, ipso facto (von selbst), abrogates Treaties between
the Belligerents. The questions which present themselves for our
consideration are, first, whether this proposition be true in all its
latitude, or whether it requires any—and if any, what-limitations,
before it can be enunciated as one of the admitted and incontroverti-
ble principles of International Jurisprudence ?
Secondly, if it be universally, or with certain limitations, true,
that Treaties annulled by War are revived by the return of Peace
without express stipulations to that effect?
The general maxim must manifestly be subject to limitation in one
case, namely, in the case of Treaties which expressly provide for the
contingency of the breaking out of War between the contracting
parties: and the Judges of the North American United States were
well warranted in saying, “We are not inclined to admit the doctrine
urged at the bar, that Treaties become extinguished, ipso facto, by
War between the two governments, unless they should be revived by
an express or implied renewal on the return of Peace. Whatever
may be the latitude of doctrine laid down by elementary writers on
the law of nations, dealing in general terms in relation to this sub-
ject, we are satisfied that the doctrine contended for is not univer-
sally true. There may be Treaties of such a nature, as to their object
and import, as that War will put an end to them; but where Treaties
contemplate a permanent arrangement of territorial and other
national rights, or which in their terms are meant to provide for the
event of an intervening War, it would be against every principle of
just interpretation to hold them extinguished by the event of War.
EFFECT OF WAR ON TREATIES.
223
If such were the law, even the Treaty of 1783, so far as it fixed our
limits and acknowledged our independence, would be gone, and we
should have had again to struggle for both upon original revolution-
ary principles. Such a construction was never asserted, and would
be so monstrous as to supersede all reasoning."
Some writers on Public and International Law go further, and
say that War abrogates only those Treaties the existence of which is
incompatible with Belligerent relations.
Phillimore, vol. 3, pp. 793-795; The Society, &c., 2. New Haven, 5
Curtis, 493.
+
Effect of peace as to revival of treaties.
Mr. Wildman has expressed an opinion that “all engagements sub-
sisting between Belligerents at the commencement of hostilities are
revived by a Treaty of Peace, so far as they are consistent with its
provisions.
This opinion appears to the writer of these pages to be at variance
with the true doctrines of International Law, and especially with
those derived from two of the sources of this jurisprudence, viz., the
conclusions of accredited writers and the practice of States.
The opinion has arisen partly (1) from a misapprehension of the
meaning of a passage in Vattel, partly (2) from misapplying judicial
dicta, uttered with respect to Private Contracts, to Public Treaties;
partly (3), and perhaps chiefly, from not discriminating between
those parts of a Treaty which contained a final adjustment of a par-
ticular question, such as the fixing a disputed boundary or ascer-
taining any contested right or property; or which incorporated by
the common consent, express or tacit, of all States concerned in its
assertion and maintenance, a great public principle into the Interna-
tional Code. That principle once so incorporated, does not require
reiteration in subsequent Treaties, and, unless expressly repudiated,
revives with Peace, or rather remains unaffected by War waged upon
grounds unconnected with it.
(1) The passage in Vattel is taken from the 42nd Section of his
Fourth Book. “It is” (he says) “of great importance to draw a
proper distinction between a new War and the breach of an existing
Treaty of Peace; because the rights acquired by such a Treaty still
subsist notwithstanding the new war: whereas they are annulled by
the rupture of the Treaty on which they are founded. It is true,
indeed, that the party who had granted those rights does not fail
to obstruct the exercise of them during the course of the War as far
as lies in his power; and he even may, by the right of arms, wholly
deprive his enemy of them, as well as he may wrest from him his other
possessions. But in that case he withholds those rights as things
taken from the enemy, who, on a new Treaty of Peace, may urge the
224
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
restitution of them. It often happens, when nearly equal success has
attended the arms of both parties, that the Belligerents agree mutu-
ally to restore their conquests and to replace everything in its former
state. When this is the case, if the War in which they were engaged
was a new one, the former Treaties still subsist."
But of what is the writer speaking ? Not of the effect of War
generally upon Treaties--not whether existing public covenants are
dissolved by hostilities—but whether the dispute between the Bel-
ligerents arises out of an alleged breach of an existing public cove-
nant, or whether it arises out of a new cause of offence, e. g., a viola-
tion of general International Rights, irrespective of any positive
convention subsisting between the Belligerents.
In the passage under discussion Vattel is not considering Treaties,
in which it is agreed that there shall be either an express renewal,
or a tacit revival, of former Treaties, irrespective of the new conven-
tion between the parties. He is supposing that the Belligerents have
agreed to adopt the status quo ante bellum as the adjustment of their
quarrel. In order to ascertain what that status was, the relations
of the parties before the War broke out must be considered, and
whether, therefore, independently of this War, the former Treaties
between the parties were in existence. Now, if the War was a new
War,--that is, a War on account of the violation of some general
right and not of a positive convention,--then, previously to the War,
the former Treaties were unbroken, and then, by the engagement of
both parties to observe the status quo ante bellum, these Treaties are
considered as still existing. If, on the other hand, former Treaties
have been broken, and the War has been waged upon this account,
then a specific renewal of the covenants of these former Treaties
would be necessary. In this latter, however, as in the former case,
the belligerents would have agreed to adopt the status quo ante
bellum.
This explanation renders Vattel consistent with himself, and recon-
ciles the passage which has been commented upon with that contained
in the 175th Section of his Third Book, in which he says that "the
conventions made with a nation are broken or annulled by a War
arising between the two contracting parties, either because their com-
pacts are grounded on a tacit supposition of the continuance of Peace,
or because each of the parties being authorized to deprive the enemy
of what belongs to him, takes from him those rights which he had
conferred on him by Treaty.” Vattel, it will be seen, does not speak
of Treaties being suspended, but of their being broken and annulled
by War. To give a new occasion for War and to break the Peace are,
as Grotius observes, different things. The difference between the
two is important, and has a double bearing; first, as to the penalty
incurred by the breaker of the Peace; and, secondly, as to how far his
EFFECT OF WAR ON TREATIES.
225
act relieves the other party from his engagement. “Peace,” he says,
“ may be broken in three ways: first, by doing what is at variance
with the intrinsic character of every Peace (faciendo contra id quod
omni paci inest); secondly, by violating the express conditions of
the Peace; thirdly, by acting contrary to that which ought to be
understood from the particular nature of each Peace (contra id quod
ex pacis cujusque naturâ intelligi debet).
(2) The misapplication of the doctrine of International Law re-
specting the revival after Peace of private contracts, the operation of
which is suspended during War, to the case of public Treaties, has
occasionally led persons into an error on this point.
The supposed analogy between the public and the private contract
is unsound. It is the State and not the individual who wages War.
The contracts between the individuals of Belligerent States are neces-
sarily suspended during the War of these States, but are not an-
nulled: no precedent can therefore be drawn from the tacit renewal
of these private relations on the return of Peace, to found the argu-
ment for the tacit renewal of public relations. Judicial decisions of
Municipal Courts of Law upon the former are without bearing upon
the latter question.
· Phillimore, vol. 3, pp. 795–799; Wildman, vol. 1, p. 176; Grotius, liv.
iii, c. XX. s. 27.
The language of Lord Stowell is strong upon this point, though
his opinion is incidentally or parenthetically expressed. He speaks
of Treaties being extinguished by War.
Phillimore, vol. 3, p. 799; The Frau Ilsabe, 4 C. Rob. 64.
Discussion between United States and Great Britain.
This question was much discussed between England and the
United States of North America during the negotiation at Ghent in
1814, England considering that certain Rights of Fishery accorded
by her to the United States by the Treaty of 1783 had been abro-
gated by subsequent War, and giving notice that she did not intend
to renew them.
The United States contended, on the other hand, that the Treaty
of 1783 was not one of those which by the common consent and under-
standing of civilized nations are considered as annulled by a subse-
quent Wär between the parties.
It is to be observed that England did not wholly traverse this alle-
gation, but denied the application of the principle to the provision
relating to Fisheries: the treaty of 1783, like many others, she
said, contained provisions of different character, some in their own
nature irrevocable, and others merely temporary; the provision in
question was among the latter.
226
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
Mr. Wheaton remarks that the reasoning of England seemed to
confine the perpetuity of obligation to recognitions and acknowledg-
ments of title, and to consider its perpetual nature as resulting from
the subject matter of the contract, and not from the engagement of
the contractor.
It appears to the writer of these pages that the doctrine intended
to be conveyed in the English note was in harmony with that
conveyed in the text, namely, the doctrine that there is a distinction
between the parts of a Treaty which recognized a principle and
object of permanent policy, and the parts which related to objects
of passing and temporary expediency.
Phillimore, pp. 799, 800.
United States Court decision.
It must be admitted that a Municipal Court of the United States
has denied the general doctrine of the abrogation of Treaties by
War; but this Court was dealing at the time with a question of
private property, to which the doctrine was certainly not applicable;
and the language of the Court, though certainly going beyond the
case, must be considered, in some degree at least, as the obiter dicta
of judges.
But even without these qualifications, the language of the Ameri-
can Court has 'confined its denial of the general doctrine—that Trea-
ties are abrogated by War-within limits which are scarcely, if at
all, distinguishable from the position which has been maintained in
these pages.
That Court expressed its opinion that Treaties stipulating for per-
manent rights and general arrangements, and professing to aim at
perpetuity, and to deal with the case of War as well as of Peace, do
not cease on the occurrence of War, but are at most only suspended
while it lasts; and that unless they are waived by the parties, or new
and repugnant stipulations are made, they revive and come again
into operation at the return of Peace.
Phillimore, vol. 3, p. 802; The Society for the Propagation of the
Gospel v. New Haven, 6 Curtis, 483.
English Court decision.
In 1830 a question was raised in an English Municipal Court.
whether, by the ninth article of the Treaty of 1794, between Great
Britain and the United States, American citizens who held lands in
Great Britain on October 28th, 1795, and their heirs and assigns,
are at all times to be considered, as far as regards those lands, not
as aliens, but as native subjects of Great Britain. The 28th article
of the Treaty declared that the ten first articles should be perma-
nent; but the counsel in support of the objection to the title con-
EFFECT OF WAR ON TREATIES.
227
tended that “it was impossible to suggest that the Treaty was con-
tinuing in force in 1813; it necessarily ceased with the commence-
ment of the War; the 37 Geo. III. c. 97, could not continue in opera-
tion a moment longer without violating the plainest words of the
Act: that the word 'permanent' was used, not as synonymous with
' perpetual,' or ' everlasting' but in opposition to a period of time
expressly limited.” On the other hand, the counsel in support of the
title maintained that “ the Treaty contained articles of two different
descriptions; some of them being temporary, others of perpetual
obligation. Of those which were temporary, some were to last for a
limited period—such as the various regulations concerning trade
and navigation; and some were to continue so long as peace sub-
sisted, but, being inconsistent with a state of War, would necessarily
expire with the commencement of hostilities. There were other
stipulations which were to remain in force in all time to come, un-
affected by the contingency of Peace or War. For instance, there
are clauses for fixing the boundaries of the United States. Were
the boundaries so fixed to cease to be the boundaries the moment
that hostilities broke out?"
The Master of the Rolls, in his judgment, said:—“The privileges
of natives being reciprocally given, not only to the actual possessors
of lands, but to their heirs and assigns, it is a reasonable construction
that it was the intention of the Treaty that the operation of the
Treaty should be permanent, and not depend upon the continuance
of a state of Peace.
“The Act of the 37 Geo. III. c. 95, gives full effect to this article
of the Treaty in the strongest and clearest terms; and if it be, as I
consider it, the true construction of this article, that it was to be per-
manent, and independent of a state of Peace or War, then the Act
of Parliament must be held, in the 24th section, to declare this per-
manency, and when a subsequent section provides that the Act is to
continue in force so long only as a state of Peace shall subsist, it
cannot be construed to be directly repugnant and opposed to the
24th Section, but is to be understood as referring to such provi-
sions of the Act only as would in their nature depend upon a state
of Peace."
Phillimore, vol. 3, pp. 802–804; Sutton v. Sutton, 1 Russell and Mylne,
663.
Practice of nations.
After the War of 1856, Russian and Sardinia, by Special Treaty,
renewed the obligations of Treaties which had been abrogated by
the War.
(3.) The practice of States is clear upon this subject. It receives
an-ample illustration, especially as far as England is concerned, from
228
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the debates in both Houses of the English Legislature at the period
of the Peace of Amiens (1801).
In the House of Lords there were two debates upon the subject of
this Peace. Upon a careful perusal and attentive consideration of
them it will be found that the doctrine of the abrogation of Treaties
by the breaking out of War was either expressly, or by implication,
admitted by every speaker who had any pretensions to be considered
either a jurist or a statesman.
In the first debate Lord Grenville observed that "in entering into
negotiation, every statesman knew that the basis must be one of
these two-either to take the status ante bellum or the uti possidetis
at the moment of negotiating. From one of these points every
negotiation must set out."
He afterwards added, that“ he was peculiarly called upon to direct
the attention of Ministers to the subject of an omission which ap-
peared to him of great consequence, of not stipulating for the renewal
of all or most of the treaties before subsisting between this country
and those nations with which we had lately been at war.” .
He next adverted to the "non-renewal of ancient Treaties, which
he would contend was a principle in the process of negotiation equally
novel and injurious; and, in illustrating these propositions, he again
referred to the French official papers that he had already quoted,
which said, 'the old law is destroyed; a new public law commences;
which principle might be most destructively applied by France in her
future projects of aggrandisement; and they might well say to iis,
that, abiding by the Treaty of Amiens, which in effect ordained a
new Law of Nations, we had no right or title to inquire."
In this debate, too, the ex-Lord Chancellor, Lord Thurlow, insisted
that all“ subsisting Treaties were at an end as soon as a War was com-
menced with those who were parties to them. It by no means fol-
lowed as a matter of course that ancient Treaties were necessarily
to be revived and renewed in every Treaty of Peace: that must
depend upon the will of the contracting parties."
In the second debate Lord Grenville moved an address which in
one of its paragraphs adverted to the “immense accessions of terri-
tory, influence, and power which it (the Treaty) had tacitly con-
firmed to France."
Dr. Lawrence, Sir W. Grant,--authorities second to none upon
a question of International Law,--Mr. Windham, Mr. Pitt, Lord
Chancellor Eldon, Lord Hawkesbury, Lord Carnarvon, speakers tak-
ing different parts, and maintaining different opinions in the debate
as to the policy of the Treaty of Amiens, will all be found to have
admitted expressly, or by implication, the doctrine that Treaties are
abrogated by War.
Phillimore, vol. 2, pp. 804 806; Hansard's Parl. Hist. vol. xxxvi, pp.
587-762.
EFFECT OF WAR ON TREATIES.
229
Case of the “ Spanish marriages.”
It has been thought that this doctrine respecting the abrogation of
Treaties by War is at variance with the language of the English and
French Ministers for Foreign Affairs, Lord Palmerston and M.
Guizot, during the painful discussion upon that most discreditable
international transaction of the Spanish Marriages in 1846. It has
been said by a modern writer that, “in the dispute on the Spanish
marriages, the French Minister had to defend, and the English For-
eign Secretary to impugn, a transaction which both knew to be too
infamous for public discussion; it was for this reason that both
parties selected a fictitious issue."
But in truth it is hardly necessary to have recourse to this sup-
position in order to reconcile with the doctrine which has been laid
down the opinion that the Treaty of Utrecht, though not renewed
by the later Treaties, was nevertheless a bar to the scheme of uniting
France and Spain under one crown.
The Treaty of Utrecht contemplated a permanent arrangement of
National and International Rights; moreover, it contained the asser-
tion of a great principle relating to the balance of power and the
security of the liberties of Europe. It contained, further, a solemn
renunciation on the part of the Duke of Orleans, for himself and his
successors, of any title to the throne of Spain. So far as this
permanent arrangement, this principle, and this renunciation are
concerned, the Treaty is not abrogated by the omission or the non-
renewal of it in later Treaties. It would require either an express
waiver or repugnant stipulations in these later Treaties to extinguish
these consequences of the Treaty.
Phillimore, vol. 3, pp. 806–808; Correspondence relating to the Marriages
of the Queen and Infanta of Spain. Papers presented to British
Parliament, 1847.
o
General rule-exceptions.
As a general rule, the obligations of treaties are dissipated by hos-
tility, and they are extinguished and gone forever, unless revived by
a subsequent treaty. But if a treaty contains any stipulations which
contemplate a state of future war, and make provision for such an
exigency, they preserve their force and obligation when the rupture
takes place. All those duties of which the exercise is not necessarily
suspended by the war, subsist in their full force. The obligation of
keeping faith is so far from ceasing in time of war, that its efficacy
becomes increased, from the increased necessity of it. What would
become of prisoners of war, and the terms of capitulation of garri-
sons and towns, if the word of an enemy was not to be relied on? The
faith of promises and treaties which have reference to a state of war
is to be held as sacred in war as in peace, and among enemies as
1
230
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
among friends. All the writers on public law admit this position,
and they have never failed to recoinmend the duty and the ob-
servance of good faith, by the most powerful motives, and the most
pathetic and eloquent appeals which could be addressed to the rea-
son and to the moral sense of nations. The tenth article of the
treaty between the United States and Great Britain, in 1794, may be
mentioned as an instance of a stipulation made for war. It provided
that debts due from individuals of the one nation to those of the
other, and the shares or moneys which they might have in the public
funds, or in public or private banks, should never, in any event of
war, be sequestered or confiscated. There can be no doubt that
the obligation of that article was not impaired by the war of 1812,
but remained throughout that war, and continues to this day, binding
upon the two nations, and will continue so, until they mutually agree
to rescind the article; for it is a principle of universal jurisprudence,
that a compact cannot be rescinded by one party only, if the other
party does not consent to rescind it, and does no act to destroy it. In
the case of The Society for Propagating the Gospel v. New Haven,
the Supreme Court of the United States would not admit the doc-
trine that treaties became extinguished ipso facto by war, unless re-
vived by an express or implied renewal on the return of peace. Such
a doctrine is not universally true. Where treaties contemplate a
permanent arrangement of national rights, or which by their terms
are meant to provide for the event of an intervening war, it would
be against every principle of just interpretation to hold them ex-
tinguished by the event of war. They revive at peace, unless waived,
or new and repugnant stipulations be made.
Kent, vol. I, pp. 189, 190; 8 Wheaton, 494; Sutton v. Sutton, I Russ. &
My. 663.
Discussion between United States and Great Britain.
The American Ministers, in their negotiations at London, in 1818,
with the British government, insisted that the third article of the
treaty of September, 1783, relative to the fisheries, was a fundamental
and permanent article, securing a primary right, not annulled,
though the exercise of the right was interrupted by the war of 1812;
and that the right remained in full force, after the termination of
the war, notwithstanding it was not noticed in the treaty of Ghent.
The British commissioners, on the other hand, alleged that the war
of 1812 cancelled the provision, and, not being renewed by the sub-
sequent treaty of peace, the right was extinguished. The two nations
at last agreed to the convention of the 20th of October, 1818, modify-
ing and settling the question as to the fisheries, without yielding, on
either side, their construction of the operation of the war of 1812,
upon the treaty of 1783. Rush's Memoranda, 354–368. See the
EFFECT OF WAR ON TREATIES.
231
Diplomatic Correspondence between Mr. Adams and Lord Bathurst,
in 1815. In this correspondence, the British negotiator admitted that
the acknowledgment of a right or title in a treaty of peace, was, in its
own nature, of perpetual obligation. The cession of a right, as that
of boundary lines and places, for instance, would seem to fall within
the same principle. Such were the treaties of Munster, 1648, and of
Utrecht, 1713, which, after long and exhausting wars, settled the
rights of the great European powers on a solid and permanent foun-
dation, and are still deemed to be in vigor, and intimately connected
with the settlement of Europe. [The history of the fisheries question
will be found 5 Am. Law Rev. 389.]
Kent, vol. I, pp. 190, 191, note.
A declaration of war does not ipso facto extinguish treaties be-
tween the belligerent states. Treaties of friendship and alliance
are: necessarily annulled by a war between the contracting parties,
except such stipulations as are made expressly with a view to a rup-
ture, such as limitations of the general rights of war, etc. So of
treaties of commerce and navigation; they are generally either sus-
pended or entirely extinguished by a war between the parties to
such treaties. All stipulations, with respect to the conduct of the
war, or with respect to the effect of hostilities upon the rights and
property of the citizens and subjects of the parties, are not impaired
by supervening hostilities, this being the very contingency intended
to be provided for, but continue in full force until mutually agreed
to be rescinded. There are many stipulations of treaties, which,
although perpetual in their character, are suspended by a declara-
tion of war, and can only be carried into effect on the return of peace.
But this subject will be further noticed in another chapter. (Vattel,
Droit de Gens, liv. 3, ch. 10, § 175; Wheaton, Elem. Int. Law, pt. 3,
ch. 2, § 10; Kent, Com. on Am. Law, vol. 1, p. 175.)
Halleck, p. 371.
Treaty of 1783 between United States and Great Britain.
General compacts between nations may be divided into what are
called transitory conventions, and treaties properly so termed. The
first are perpetual in their nature, so that, being once carried into
effect, they subsist independent of any change in the sovereignty and
form of government of the contracting parties; and although their
operation may, in some cases, be suspended during war, they re-
vive on the return of peace without any express stipulation. Such
are treaties of cession, boundary, or exchange of territory, or those
which create a permanent servitude in favor of one nation within
the territory of another.
232
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Thus the treaty of peace of 1783, between Great Britain and the
United States, by which the independence of the latter was acknowl-
edged, prohibited future confiscations of property; and the treaty of
1794, between the same parties confirmed the titles of British sub-
jects holding lands in the United States, and of American citizens
holding lands in Great Britain, which might otherwise be forfeited
for alienage. Under these stipulations, the Supreme Court of the
United States determined, that the title both of British natural sub-
jects and of corporations to lands in America was protected by the
treaty of peace, and confirmed by the treaty of 1794, so that it could
not be forfeited by any intermediate legislative act, or other proceed-
ing, for alienage. Even supposing the treaties were abrogated by
the war which broke out between the two countries in 1812, it would
not follow that the rights of property already vested under those
treaties could be devested by supervening hostilities. The extinction
of the treaties would no more extinguish the title to real property ac-
quired or secured under their stipulations than the repeal of a mu-
nicipal law affects rights of property vested under its provisions.
But independent of this incontestible principle, on which the security
of all property rests, the court was not inclined to admit the doctrine
that treaties become, by war between the two contracting parties,
ipso facto extinguished if not revived by an express or implied re-
newal on the return of peace. Whatever might be the latitude of
doctrine laid down by elementary writers on the law of nations,
dealing in general terms in relation to the subject, it was satisfied
that the doctrine contended for was not universally true. There
might be treaties of such a nature as to their object and import, as
that war would necessarily put an end to them; but where treaties
contemplated a permanent arrangement of territory, and other na-
tional rights, or in their terms were meant to provide for the event
of an intervening war, it would be against every principle of just
interpretation to hold them extinguished by war. If such were the
law, even the treaty of 1783, so far as it fixed the limits of the
United States, and acknowledged their independence, would be gone,
and they would have had again to struggle for both, upon original
revolutionary principles. Such a construction was never asserted,
and would be so monstrous as to supersede all reasoning. The court,
therefore, concluded that treaties stipulating for permanent rights
and general arrangements, and professing to aim at perpetuity, and
to deal with the case of war as well as of peace, do not cease on the oc-
curence of war, but are, at most, only suspended while it lasts; and
unless they are waived by the parties, or new and repugnant stipu-
lations are made, revive upon the return of peace.
By the 3d article of the treaty of peace of 1783, between the United
States and Great Britain, it was “agreed that the people of the
EFFECT OF WAR ON TREATIES.
233
United States shall continue to enjoy unmolested the right to take
fish of every kind on the Grand Bank, and on all the other Banks of
Newfoundland; also in the Gulf of St. Lawrence, and at all other
places in the sea, where the inhabitants of both countries used, at
any time heretofore, to fish; and also that the inhabitants of the
United States shall have liberty to take fish of every kind on such
part of the coast of Newfoundland as British fishermen shall use,
(but not to dry or cure the same on that island,) and also on the
coasts, bays, and creeks of all other of His Britannic Majesty's do-
minions in America; and that the American fishermen shall have
liberty to dry and cure fish in any of the unsettled bays, harbors,
and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long
as the same shall remain unsettled; but so soon as the same, or either
of them, shall be settled, it shall not be lawful for the said fisher-
men to dry or cure fish at such settlement, without a previous agree-
ment for that purpose with the inhabitants, proprietors, or possessors
of the ground."
During the negotiation at Ghent, in 1814, the British plenipo-
tentiaries gave notice that their government“ did not intend to grant
to the United States, gratuitously, the privileges formerly granted
by treaty to them of fishing within the limits of the British sov-
ereignty, and of using the shores of the British territories for pur-
poses connected with the British fisheries." In answer to this decla-
ration the American plenipotentiaries stated that they were “not
authorized to bring into discussion any of the rights or liberties
which the United States have heretofore enjoyed in relation thereto;
from their nature, and from the peculiar character of the treaty
of 1783, by which they were recognized, no further stipulation has
been deemed necessary by the government of the United States to
entitle them to the full enjoyment of them all."
The treaty of peace concluded at Ghent, in 1814, therefore, con-
tained no stipulation on the subject; and the British government
subsequently expressed its intention to exclude the American fish-
ing-vessels from the liberty of fishing within one marine league of
the shores of the British territories in North America, and from that
of drying and curing their fish on the unsettled parts of those terri-
tories, and, with the consent of the inhabitants, within those parts
which had become settled since the peace of 1783.
In discussing this question, the American minister in London, Mr.
J. Q. Adams, stated, that from the time the settlement in North
America, constituting the United States, was made, until their sepa-
ration from Great Britain and their establishment as distinct sover-
eignties, these liberties of fishing, and of drying and curing fish,
had been enjoyed by them, in common with the other subjects of the
British empire. In point of principle, they were pre-eminently
110678-1916
234
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
entitled to the enjoyment; and, in point of fact, they had enjoyed
more of them than any other portion of the empire; their settle-
ment of the neighboring country having naturally led to the discov-
ery and improvement of these fisheries; and their proximity to the
places where they were prosecuted, having led them to the discov-
cry of the most advantageous fishing grounds, and given them facili-
ties in the pursuit of their occupation in those regions, which the
remoter parts of the empire could not possess. It might be added,
that they had contributed their full share, and more than their
share, in securing the conquest from France of the provinces on the
coasts of which these fisheries were situated,
It was doubtless upon considerations such as these that an express
stipulation was inserted in the treaty of 1783, recognizing the rights
and liberties which had always been enjoyed by the people of the
United States in these fisheries, and declaring that they should con-
tinue to enjoy the right of fishing on the Grand Bank, and other
places of common jurisdiction, and have the liberty of fishing, and
drying and curing their fish, within the exclusive British jurisdic-
tion on the North American coasts, to which they had been accus-
tomed whilst they formed a part of the British nation. This stipu-
lation was a part of that treaty by which His Majesty acknowledged
the United States as free, sovereign, and independent States, and
that he treated with them as such.
It could not be necessry to prove that this treaty was not, in its
general provisions, one of those which, by the common understand-
ing and usage of civilized nations, is considered as annulled by a
subsequent war between the same parties. To suppose that it is,
would imply the inconsistency and absurdity of a sovereign and
independent State, -liable to forfeit its right of sovereignty by the
act of exercising it on a declaration of war. But the very words of
the treaty attested that the sovereignty and independence of the
United States were not considered as grants from His Majesty.
They were taken and expressed as existing before the treaty was
made, and as then only first formally recognized by Great Britain.
Precisely of the same nature were the rights and liberties in the
fisheries. They were, in no respect, grants from the king of Great
Britain to the United States; but the acknowledgment of them as
rights and liberties enjoyed before the separation of the two coun-
tries, and which it was mutually agreed should continue to be
enjoyed under the new relations which were to subsist between them,
constituted the essence of the article concerning the fisheries. The
very peculiarity of the stipulation was an evidence that it was not,
on either side, understood or intended as a grant from one sover-
eign State to another. Had it been so understood, neither could the
United States have claimed, nor would Great Britain have granted,
EFFECT OF WAR ON TREATIES.
235
gratuitously, any such concession. There was nothing, either in
the state of things, or in the disposition of the parties, which could
have led to such a stipulation on the part of Great Britain, as on
the ground of a grant without an equivalent.
If the stipulation by the treaty of 1783, was one of the conditions
by which His Majesty acknowledged the sovereignty and independ-
ence of the United States; if it was the mere recognition of rights
and liberties previously existing and enjoyed, it was neither a privi-
lege gratuitously granted, nor liable to be forfeited by the mere
existence of a subsequent war. If it was not forfeited by the war,
neither could it be impaired by the declaration of Great Britain at
Ghent, that she did not intend to renew the grant. Where there
had been no gratuitous concession, there could be none to renew;
the rights and liberties of the United States could not be cancelled
by the declaration of the British intentions. Nothing could abro-
gate them but a renunciation by the United States themselves.
In the answer of the British government to this communication
it was stated that Great Britain had always considered the liberty
formerly enjoyed by the United States, of fishing within British
limits and using British territory, as derived from the 3d article of
the treaty of 1783, and from that alone; and that the claim of an
independent State to occupy and use, at its discretion, any portion
of the territory of another, without compensation or corresponding
indulgence, could not rest on any other foundation than conven-
tional stipulation. It was unnecessary to inquire into the motives
which might have originally influenced Great Britain in conceding
such liberties to the United States, or whether other articles of the
treaty did or did not, in fact, afford an equivalent for them, be-
cause all the stipulations profess to be founded on reciprocal advan-
tage and mutual convenience. If the United States derived from
that treaty privileges, from which other independent nations not
admitted by treaty were excluded, the duration of the privileges
must depend on the duration of the instrument by which they were
granted; and if the war abrogated the treaty, it determined the
privileges. It had been urged, indeed, on the part of the United
States, that the treaty of 1783 was of a peculiar character, and that,
because it contained a recognition of American independence, it
could not be abrogated by a subsequent war between the parties.
To a position of this novel nature Great Britain could not accede.
She knew of no exception to the rule, that all treaties are put an
end to by a subsequent war between the same parties; she could
not, therefore, consent to give her diplomatic relations with one
State a different degree of permanency from that on which her con-
nection with all other States depended. Nor could she consider any
236
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
one State at liberty to assign to a treaty made with her such a pecul-
iarity of character as should make it, as to duration, an exception
to all other treaties, in order to found, on a peculiarity thus assumed,
an irrevocable title to indulgences which had all the features of tem-
porary concessions.
It was by no means unusual for treaties containing recognitions
and acknowledgments of title, in the nature of perpetual obligations,
to contain, likewise, grants of privileges liable to revocation. The
treaty of 1783, like many others, contained provisions of different
character; some in their own nature irrevocable, and others merely
temporary. If it were thence inferred that, because some advan-
tages specified in that theaty would not be put an end to by the war,
therefore all the other advantages were intended to be equally per-
manent, it must first be shown that the advantages themselves are
of the same, or at least of a similar character; for the character of
one advantage, recognized or conceded by treaty, can have no con-
nection with the character of another, though conceded by the same
instrument, unless it arises out of a strict and necessary connection
between the advantages themselves. But what necessary connection
could there be between a right to independence and a liberty to fish
within British jurisdiction, or to use British territory? Liberties
within British limits were as capable of being exercised by a depend-
ont as by an independent State; and could not, therefore, be the
necessary consequence of independence.
The independence of a State could not be correctly said to be
granted by a treaty, but to be acknowledged by one. In the treaty
of 1783, the independence of the United States was certainly ac-
knowledged, not merely by the consent to make the treaty, but by
the previous consent to enter into the provisional articles, executed
in 1782. Their independence might have been acknowledged, with-
out either the treaty or the provisional articles; but by whatever
mode acknowledged, the acknowledgment was, in its own nature,
irrevocable. A power of revoking, or even of modifying it, would
be destructive of the thing itself; and, therefore, all such power was
necessarily renounced when the acknowledgment was made. The
war could not put an end to it, for the reason justly assigned by
the American Minister; because a nation could not forfeit its sover-
eignty by the act of exercising it; and for the further reason that
Great Britain, when she declared war against the United States,
gave them, by that very act, a new recognition of their independence.
The rights acknowledged by the treaty of 1783 were not only dis-
tinguishable from the liberties conceded by the same treaty, in the
foundation on which they stand, but they were carefully distin-
guished in the wording of the treaty. In the 1st article, Great
EFFECT OF WAR ON TREATIES.
237
Britain acknowledged an independence already expressly recognized
by the other powers of Europe, and by herself in her consent to
enter into the provisional articles of 1782. In the 3d article, Great
Britain acknowledged the right of the United States to take fish on
the Banks of Newfoundland and other places, from which Great
Britain had no right to exclude any independent nation. But they
were to have the liberty to cure and dry them in certain unsettled
places within the British territory. If the liberties thus granted
were to be as perpetual and indefeasible as the rights previously recog-
nized, it was difficult to conceive that the American plenipotentiaries
would have admitted a variation of language so adapted to produce
a different impression; and, above all, that they should have ad-
mitted so strange a restriction of a perpetual and indefeasible right
as that with which the article concludes, which left a right so prac-
tical and so beneficial as this was admitted to be, dependent on the
will of British subjects, proprietors, or possessors of the soil, to pro-
hibit its exercise altogether.
It was, therefore, surely obvious that the word right was, through-
out the treaty, used as applicable to what the United States were to
enjoy in virtue of a recognized independence; and the word liberty
to what they were to enjoy as concessions strictly dependent on the
treaty itself.
The American Minister, in his reply to this argument, disavowed
every pretence of claiming for the diplomatic relations between the
United States and Great Britain a degree of permanency different
from that of the same relations between either of the parties and all
other powers. He disclaimed all pretence of assigning to any treaty
between the two nations, any peculiarity not founded in the nature
of the treaty itself. But he submitted to the candor of the British
government whether the treaty of 1783 was not, from the very nature
of its subject-matter, and from the relations previously existing be-
tween the parties to it, peculiar? Whether it was a treaty which
could have been made between Great Britain and any other nation?
And if not, whether the whole scope and object of its stipulations
were not expressly intended to establish a new and permanent state
of diplomatic relations between the two countries, which would not
and could not be annulled by the mere fact of a subsequent war?
And he made this appeal with the more confidence, because the
British note admitted that treaties often contained recognitions in
the nature of perpetual obligation; and because it implicity ad-
mitted that the whole treaty of 1783 is of this character, with the
exception of the article concerning the navigation of the Mississippi,
and a small part of the article concerning the fisheries.
The position, that "Great Britain knows of no exception to the
rule, that all treaties are put an end to by a subsequent war," ap-
238
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
peared to the American Minister not only novel, but unwarranted by
any of the received authorities upon the law of nations; unsanctioned
by the practice and usages of sovereign States; suited, in its tendency,
to multiply the incitements to war, and to weaken the ties of peace
between independent nations; and not easily reconciled with the ad-
mission that treaties not unusually contain, together with articles
of a temporary character, liable to revocation, “recognitions and
acknowledgments in the nature of perpetual obligation.
A recognition or acknowledgment of title, stipulated by conven-
tion, was as much a part of the treaty as any other article; and if all
treaties are abrogated by war, the recognitions and acknowledgments
contained in them must necessarily be null and void, as much as any
other part of the treaty.
If there were no exception to the rule, that war puts an end to
all treaties between the parties to it, what could be the purpose or
meaning of those articles which, in almost all treaties of commerce,
were provided expressly for the contingency of war, and which dur-
ing the peace are without operation? For example, the 10th article
of the treaty of 1794, between the United States and Great Britain,
stipulated that “Neither the debts due from individuals of the one
nation to individuals of the other, nor shares, nor moneys, which they
may have in the public funds, or in the public or private banks, shall
ever, in any event of war, or national differences, be sequestered or
confiscated." If war put an end to all treaties, what could the parties
to this engagement intend by making it formally an article of the
treaty? According to the principle laid down, excluding all excep-
tion, by the British note, the moment a war broke out between the
two countries this stipulation became a dead letter, and either State
might have sequestered or 'confiscated those specified properties,
without any violation of compact between the two nations.
The American Minister believed that there were many exceptions
to the rule by which the treaties between nations are mutually
considered as terminated by the intervention of a war; that these
exceptions extend to all engagements contracted with the under-
standing that they are to operate equally in war and peace, or exclu-
sively during war; to all engagements by which the parties superadd
the sanction of a formal compact to principles dictated by the eternal
laws of morality and humanity; and, finally, to all engagements,
which, according to the expression of the British note, are in the
nature of perpetual obligation. To the first and second of these
classes might be referred the 10th article of the treaty of 1794, and
all treaties or articles of treaties stipulating the abolition of the
slave-trade. The treaty of peace of 1783 belongs to the third class.
The reasoning of the British note seemed to confine this perpetuity
of obligation to recognitions and acknowledgments of title, and to
EFFECT OF WAR ON TREATIES.
239
consider its perpetual nature as resulting from the subject matter
of the contract, and not from the engagement of the contractor.
While Great Britain left the United States unmolested in the enjoy-
ment of all the advantages, rights, and liberties stipulated in their
behalf in the treaty of 1783, it was immaterial whether she founded
her conduct upon the mere fact that the United States are in posses-
sion of such rights, or whether she was governed by good faith and
respect for her own engagements. But if she contested any of these
rights, it was to her engagements only that the United States could
appeal, as the rule for settling the question of right; if this appeal
were rejected, it ceased to be a discussion of right; and this obser-
vation applied as strongly to the recognition of independence and
the boundary line, in the treaty of 1783, as to the fisheries. It was
truly observed in the British note, that in that treaty the independ-
ence of the United States was not granted, but acknowledged; and
it was added, that it might have been acknowledged without any
treaty, and that the acknowledgment, in whatever mode, would have
been irrevocable. But the independence of the United States was
precisely the question upon which a previous war between them and
Great Britain had been waged. Other nations might acknowledge
their independence without a treaty, because they had no right or
claim of right to contest it; but this acknowledgment, to be binding
upon Great Britain, could have been made only by treaty, because
it included the dissolution of one social compact between the parties,
as well as the formation of another. Peace could exist between the
two nations only by the mutual pledge of faith to the new social
relations established between them; and hence it was, that the stipu-
lations to that treaty were in the nature of perpetual obligation, and
not liable to be forfeited by a subsequent war, or by any declaration
of the will of either party, without the assent of the other.
The above analysis of the correspondence which took place relat-
ing to this subject, has been inserted as illustrative of the general
question, how far treaties are abrogated by war between the parties
to them; but the particular controversy itself, was finally settled
between the two countries on the basis of compromise, by the con-
vention of 1818, in which the liberty claimed by the United States in
respect to the fishery within the British jurisdiction and territory,
was confined to certain geographical limits.
Wheaton, 340–350; Chirac v. Chirac, 2 Wheat. 277; The Society etc. v.
New Haven, 8 Wheat. 464; Sutton V. Sutton, 1 Russell and Milne's
Rep. 663; American State Papers, fol. edit. 1834, IV, 352–356.
Treaties
expire, of course
3. In case of war
between the contracting parties; unless such stipulations as are
made expressly with a view to a rupture, such as the period of
time allowed to the respective subjects to retire with their effects,
*
240
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
or other limitations of the general rights of war. Such is the
stipulation contained in the 10th article of the treaty of 1794, be-
tween Great Britain and the United States,--providing that pri-
vate debts and shares or moneys in the public funds, or in public
or private banks belonging to private individuals, should never, in
the event of war, be sequestered or confiscated. There can be no
doubt that the obligation of this article would not be impaired by
a supervening war, being the very contingency meant to be provided
for, and that it must remain in full force until mutually agreed to
be rescinded.
Wheaton, p. 352.
Mixed character of treaties.
Most international compacts, and especially treaties of peace, are
of a mixed character, and contain articles of both kinds, which ren-
ders it frequently difficult to distinguish between those stipulations
which are perpetual in their nature, and such as are extinguished by
war between the contracting parties, or by such changes of circum-
stances as affect the being of either party, and thus render the com-
pact inapplicable to the new condition of things. It is for this
reason, and from abundance of caution, that stipulations are fre-
quently inserted in treaties of peace, expressly reviving and con-
firming the treaties formerly subsisting between the contracting
parties, and containing stipulations of a permanent character, or in
some other mode excluding the conclusion that the obligation of such
antecedent treaties is meant to be waived by either party. The reit-
erated confirmations of the treaties of Westphalia and Utrecht, in
almost every subsequent treaty of peace or commerce between the
same parties, constituted a sort of written code of conventional law,
by which the distribution of power and territory among the princi-
pal European States was permanently settled, until violently dis-
turbed by the partition of Poland and the wars of the French revo-
lution. The arrangements of territory and political relations sub-
stituted by the treaties of Vienna for the ancient conventional law
of Europe, and doubtless intended to be of a similar permanent
character, have already undergone, in consequence of the French,
Polish, and Belgic revolutions of 1830, very important modifications,
of which we have given an account in another work.
Wheaton, pp. 353, 354.
Test of survival.
Indeed, it seems plain that the test of survival is to be found in
the nature of the provision, and not in the origin of the war. If,
indeed, the war amounts to a mutual abrogation of the treaty, the
rights under it cease, from that fact; but, if the war has its origin
EFFECT OF WAR ON TREATIES.
241
in a breach of the treaty by one party, the rights of the other under
the treaty cannot be affected. They may be lost by the result of
the war,—that is, by conquest,--as any other right may be; but
not by the fact that the other party begins a war for the purpose
of escaping the obligation of the treaty in respect to those rights.
So, if a war arises from a cause independent of the treaty, the sur-
vival of any clause in the treaty must depend upon its nature, and
the circumstances under which it was made. See also the debate
in the House of Commons on the Declaration of Paris of 1856.
Speeches of Sir George Lewis and Mr. Bright of March 11 and
17, 1862, and of the Earl of Derby of Feb. 7, 1862. Despatch of
Mr. Marcy to Mr. Mason of Dec. 8, 1856. Phillimore's Intern. Law,
iii. App. 21.
Wheaton, p. 353, Note 143.
Effect of war doubtful, on many provisions.
War suspends all intercourse, political, social, commercial, except
so far as intercourse is required by the purposes of war itself. But
does it end all treaties? In answer we say that certain stipulations
are in their nature or terms lasting. Such are: (1) Those which
contemplate a state of war, and therefore could have no effect if
rendered null by war. (2) Those which are declared to be perpetual,
like the liberty, under our treaty of 1818 with Great Britain, “ for-
ever to cure and dry fish” in certain places ($ 59). War can only
suspend such a provision. (3) Those which imply some state or rela-
tion in itself permanent. Of this kind is a past recognition of a
state within certain boundaries. For an organized community upon
a specific territory is an admitted fact, to which only conquest, the
destruction of a condition otherwise permanent, can put an end.
(4) The same perpetual nature belongs to a compact to regard cer-
tain rules or interpretations as part of the law of nations, since the
stateo fp eace or war between two parties can not affect general prin-
ciples of justice.
It has been held by some, especially earlier, writers, in some diplo-
matic documents, and by at least one nation, that apart from cases
like those above mentioned treaties do not survive a new war. Dr.
Twiss says that, in practice, Great Britain admits of no exception to
the rule that all treaties, as such, are put an end to by a subsequent
war between the contracting parties. (“Law of Nations in Peace,"
$ 234.) That the treaties of Westphalia and Utrecht were often re-
newed in treaties, following wars between the parties to them, indi-
cates that at least their survival was not certain. And if a war were
closed without an express treaty, the rule of uti possidetis would
242
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
decide even territorial sovereignty. We come, then, to this conclu-
sion: that the effect of war on those provisions of treaties, the
breach of which did not provoke the war, is at least doubtful, and
that new treaties after war ought to contain explicit renewal of such
arrangements. This is to a great extent the practice.
Dr. Bluntschli thinks the old opinion that war dissolves treaties
to be a deduction from the doctrine that war introduces a state of
nature without rights, so that as soon as war is held to be a help in
securing rights or avoiding wrongs the old opinion falls to the
ground. “The state of war as little destroys contract rights as it
overturns general jural order. War may even serve as a means to
compel a state to fulfill its treaty-obligations." True, but redress
of wrong puts an end often to treaties which were not violated, and
the victor determines the nature as well as the amount of the
reparation. There are, again, wrongs which violate no express obli-
gation, and cannot be repaired but by bringing some treaty to an
end. The principle, moreover, of the survival of treaties not vio-
lated by the enemy is of no great practical importance, since the
winning party will make his own terms.
Woolsey, pp. 263–264; Bluntschli, sec. 538.
1
Divergence of opinions.
It is not altogether settled what treaties are annulled or suspended
by war, and what treaties remain in force during its continuance or
revive at its conclusion. According to some writers all treaties are
annulled, except in so far as they are concluded with the express
object of regulating the conduct of the parties while hostilities last.
Wheaton considers that so-called 'transitory conventions, which
set up a permanent state of things by an act done once for all, such
as treaties of cession or boundary, or those which create a servitude
in favour of one nation within the territory of another, generally
subsist notwithstanding the existence of war, "and although their
operation may in some cases, which he does not specify, ‘be sus-
pended during war, they revive on the return of peace without any
express stipulation;' other treaties, as of commerce and navigation,
expire, of course, except "such stipulations as are made expressly
with a view to a rupture.' De Martens is of the same opinion, except
that he thinks that transitory conventions may always be suspended
and sometimes annulled. Other writers, and the English and Ameri-
can courts, hold that transitory conventions are in no case de-
stroyed or suspended by war, they being, according to Sir Travers
Twiss, less of the nature of an agreement than of a recognition of a
right already existing, or, as the same view was put in the form of
an example by an American judge, if treaties which contemplate a
EFFECT OF WAR ON TREATIES.
243
permanent arrangement of territorial or other national rights were
extinguished by the event of war, even the treaty of 1783, so far as
it fixed our limits and acknowledged our independence, would be
gone', and on the occurrence of war between England and the United
States' we should have had again to struggle for both upon original
and revolutionary principles. Others again think that all treaties
remain binding unless their terms imply the existence of peace, or
unless the reason for their stipulations is destroyed by the war; or
else that treaties of the last-mentioned kind, such as treaties of alli-
ance, are annulled, but that treaties of commerce, postal conventions,
and other arrangements of like character, are suspended only, and
that treaties or provisions in them, such as those ceding or defining
territory, which are intended to be permanent, remain in force; or
finally that treaties are put an end to or suspended only when or in
so far as their execution is incompatible with the war itself.
A like divergence of opinion is suggested by the conduct of states
at the conclusion of recent wars. By the Treaty of Paris, which ended
the Crimean war, it was stipulated that until the treaties or conven-
tions existing before the war between the belligerent powers were re-
newed or replaced by fresh agreements, trade should be carried on on
the footing of the regulations in force before the war, and the sub-
jects of the interbelligerent states should be treated as between those
states as favourably as those of the most favoured nation. Under
this provision, not only were fresh treaties of commerce concluded,
but it seemed necessary to Russia and Sardinia to exchange declara-
tions to the effect that a convention for the abolition of the droit
d'aubaine, than which no agreement could seem to be more thoroughly
made in view of a permanent arrangement of rights, was to be con-
sidered as having recovered its force from the date of the exchange
of ratifications of the treaty. Again, as between Austria and Sar-
dinia in 1859, all treaties in vigor upon the commencement of the
war of that year were confirmed, that is to say were stated by way
of precaution to be in force, by the Treaty of Zurich, and among
those treaties seem to have been a treaty of commerce and a postal
convention; but as between Austria and France no revival or con-
firmation of treaties was stipulated although agreements of every
kind existed between them. In 1866 the Treaty of Vienna between
Austria and Italy confirmed afresh the engagements with which the
Treaty of Zurich had dealt, and the Treaty of Prague revived, or in
other words restipulated, all the treaties existing between Prussia
and Austria in so far as they had not lost their applicability through
the dissolution of the German Confederation. In 1871 the Treaty of
Frankfort revived treaties of commerce and navigation, a railway
convention having reference to the customs, copyright conventions
244
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
and extradition treaties, without making any mention of other
treaties by which France and Germany were bound to each other.
Looking at the matter apart from authority and from practice,
treaties and other conventions, except those made in express con-
templation of war, or articles so made forming part of more general
treaties, as to the binding force of which during hostilities there is
no question, would seem to fall naturally for present purposes under
the following heads:
1. Treaties, such as great European territorial settlements and dy-
nastic arrangements, intended to set up a permanent state of things
by an act done once for all, in which the belligerent parties have con-
tracted with third powers as well as with each other.
2. Treaties also binding the belligerent states with third powers
as well as to each other, but unlike the former class stipulating for
continuous acts or for acts to be done in certain contingencies, such
for example as treaties of guarantee.
3. Treaties with political objects, intended to set up a permanent
state of things by an act done once for all, which have been con-
cluded between the belligerent parties alone, such as treaties of
cession or of confederation.
4. Treaties concluded between the belligerent states only, and deal-
ing with matters connected with the social relations of states, which
from the nature of their contents appear to be intended to set up a
permanent state of things, such as conventions to abolish the droit
d'aubaine or regulate the acquisition and loss of nationality.
5. Treaties concluded between the belligerent states only, whether
with political objects or not, which from the nature of their contents
do not appear to be intended to set up a permanent state of things,
such as treaties of alliance, commercial treaties, postal conventions,
&c.
With regard to the first of these classes of treaties it is obvious that
the fact of war makes no difference in their binding force, since each
party remains bound to another with whom he is not at war. There
is also no difficulty in observing them, since they merely oblige to an
abstention from acts at variance with their provisions. The second
class remain equally obligatory, subject to the condition that there
shall be a reasonable possibility of carrying out their provisions;
but as those provisions require performance of acts, and not simply
abstention from them, compliance may readily be inconsistent with
the state of war or with the incidents of the particular war. Treaties
of this kind therefore must be viewed according to circumstances,
as continuing or as being suspended. Compacts of the third kind, on
the other hand, must in all cases be regarded as continuing to impose
EFFECT OF WAR ON TREATIES.
245
obligations until they are either supplanted by a fresh agreement or
are invalidated by a sufficiently long adverse prescription. Suppose,
for example, that a province belonging to one of two states is held
under a treaty of cession from the other. On the outbreak of war
between them, if the treaty were annulled by the occurrence of hos-
tilities, the former owner would reenter the province as his own, or
if it were suspended he would be able to exercise the rights of a
sovereign there as against those of an occupant in the remainder of
his enemy's territory. Neither of these things however takes place.
The rights of a belligerent in territory which he has formerly ceded
are identical with those which he has in territory which has never
belonged to him. In both he has merely the rights of a military
occupant; he may appropriate both; but neither become definitely
his until the conclusion of a peace assigning the territory to him, or,
if his enemy refuses to treat, until a due term of prescription has
elapsed. As regards treaties of the fourth class, it would seem reason-
able that they should continue or be suspended at the will of either
of the belligerents. They are intended to be permanent arrange-
ments so long as peace shall exist, and there is nothing in the fact
of war to prevent them from recommencing their operation auto-
matically with the conclusion of peace; there is therefore no reason
for supposing them to be annulled. But as all social relations are
suspended for the time of war except by express or tacit permission
of the sovereign, it is impossible to look upon treaty modifications
of the normal social relations which are thus interrupted as being
compulsorily operative during the progress of hostilities; except that
the effects of acts previously done under their sanction must remain
unaltered. Treaties of the fifth class are necessarily at least sus-
pended by war, many of them are necessarily annulled, and there is
nothing in any of them to make them revive as a matter of course
on the advent of peace,-frequently in fact a change in the relations
of the parties to them effected by the treaty of peace is inconsistent
with a renewal of the identical stipulations. It would appear there-
fore to be simplest to take them to be all annulled, and to adopt
the easy course, when it is wished to put them in force again without
alteration, of expressly stipulating for their renewal by an article in
the treaty of peace.
In all cases in which war is caused by differences as to the meaning
of a treaty, the treaty must be taken to be annulled. During hos-
tilities the right interpretation is at issue; and it would be pedantry
to
press the analogy between war and legal process so far as to regard
the meaning ultimately sanctioned by victory as representing the
continuing obligation of the original compact. Whether the point
246
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
in dispute be settled at the peace by express stipulations, or whether
the events of the war have been such as to render express stipula-
tions unnecessary, a fresh starting point is taken; a peace which,
whether tacitly or in terms, gives effect to either of two interpreta-
tions has substituted certainty for doubt, and thus has brought a
new state of things into existence.
Hall, pp. 399_405.
Transitory covenants and treaties.
There is a very important difference between transitory cove-
nants and treaties, with respect to their duration. When once a
transitory covenant has been fulfilled, and has been continued on
afterwards without being renewed, or its future duration has been
defined by the contracting parties, it still continues in force. No
changes that may take place afterwards as to the person of the
sovereign, the form of government, or the sovereignty of the state
can in the least impair the validity of the covenant while it is ob-
served on the other side. If a war even should break out between
the contracting parties, the covenant does not, on that account merely,
become entirely null, although the effects of it may be suspended
during the war. But it must be admitted, that one party, in order
to obtain due satisfaction, has a right to declare, that his adversary
has forfeited all the rights he enjoyed in virtue of the treaties exist-
ing between them.”
Moore's Digest, vol. V, pp. 381-382; Marten's Law of Nations, Cob-
bett's translation (1795), 55–56. See also id. 53.
Provisions which revive,
Stipulations which relate to boundaries, to the tenure of property,
to public debts, &c., and which are permanent in their nature, are sus-
pended by war, but revive as soon as hostilities cease. The treaties of
1783 and 1794, between the United States and Great Britain, respect-
ing confiscations and alienage, were of a permanent character, and the
Supreme Court held that they were not abrogated by the War of 1812,
although their enforcement was for the time being suspended. Stipu-
lations relating to prizes, prisoners of war, blockades, contraband, &c.,
are unaffected by a declaration of war between the contracting parties,
and can only be annulled by new treaties, or in the manner provided
in the instruments themselves."
Moore's Digest, vol. V, p. 382; 1 Halleck's Int. Law (Baker's ed.), 294,
citing 1 Kent's Com., 177; 1 Benton's Thirty Years, 487; Bas v. Tin-
gey, 4 Dall., 37.
EFFECT OF WAR ON TREATIES.
247
Divergence of views.
“As to the effect of war upon treaties, we find in the publicists
much contrariety of views; but it may be affirmed that the proposi-
tion that all treaties are extinguished or annulled by war is un-
supported by authority at the present day. The misconception some-
times betrayed on the subject is due to the failure to note the narrow
sense in which the word treaties has frequently been used in this re-
lation. By a classification originating with the earlier publicists,
and often repeated by their successors, treaties have been divided into
two classes-pacta transitoria, or "transitory conventions, as the
words have been unfortunately translated, and treaties, properly so-
called. In the former class were included international compacts by
which a status was permanently established, or a right permanently
vested; and, in the latter, compacts which looked to future action,
and the execution of which presupposed the continuance of a state
of peace between the contracting parties. In accordance with the
distinction thus drawn, it was said that 'treaties' were terminated by
war, the word treaties being used in a limited technical sense.
As
a result of this double use of the term, controversies have occurred
in which the abrogation of treaties by war has been affirmed as a
universal principle on the one side and denied on the other, when in
reality the word was used by the parties in different senses-by the
one in its general and usual sense and by the other in its spécial
and restricted sense. For example, in the correspondence between
John Quincy Adams and Lord Bathurst as to the question whether
the liberties of American fishermen under the treaty of peace of
1753 were terminated by the war of 1812, Mr. Adams, maintained
that the treaty of peace' was not, in its general provisions, one of
those which, by the common understanding and usage of civilized
nations, is or can be considered as annulled by a subsequent war be-
tween the same parties.' Lord Bathurst replied: "To a position of
this novel nature Great Britain can not accede. She knows of no ex-
ception to the rule that all treaties are put an end to by a subsequent
war between the same parties. Nevertheless, his lordship in the
same note declared : 'The treaty of 1783, like many others, contained
provisions of different characters—some in their own nature irrevo-
cable, and others of a temporary character. And it may be assumed
that if the treaty had been composed wholly of provisions deemed by
his lordship to be of the former character, there would have been
no controversy between him and Mr. Adams.
“Says Vettel: The conventions, the treaties made with a nation,
are broken or annulled by a war arising between the contracting
parties, either because these compacts are grounded on a tacit sup-
position of the continuance of peace, or because each of the par-
248
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
>
ties, being authorized to deprive his enemy of what belongs to him,
takes from him those rights which he had conferred on him by
treaty. Yet here we must except those treaties by which certain
things are stipulated in case of rupture—as, for instance, the length
of time to be allowed on each side for the subjects of the other na-
tion to quit the country—the neutrality of a town or province, in-
sured by mutual consent, etc. Since by treaties of this nature we
mean to provide for what shall be observed in case of a rupture, we
renounce the right of cancelling them by a declaration of war.
The reasoning of Vattel has been repeated by many writers, and
among others by Riquelme, who observes that war annuls all the
treaties which form the international legislation between the bellig-
erent states, and that 'the reason why these treaties perish by war
is because they are made with reference to peace; and since it is law-
ful to take possession of whatever belongs to the enemy government,
with greater reason it is proper to deprive it of the rights which
grow out of the treaties.' The limitation by Riquelme in this pas-
sage of the general right of a seizure to things belonging to the
enemy government' (cuanto pertenece al govierno enemigo), will be
noted.
Says Kent: 'Where treaties contemplate a permanent arrange-
ment of national rights, or which by their terms are meant to pro-
vide. for the event of an intervening war, it would be against every
principle of just interpretation to hold them extinguished by the
event of war.' Wheaton expresses himself to the same effect. Philli-
more ascribes the errors of some writers in discussing the effect of
war on treaties to their failure to distinguish between treaties
temporary in their nature and treaties which contain a final ad-
justment of a particular question, such as the fixing of a disputed
boundary or ascertaining any contested right of property. To ques-
tions of private property he declares that the doctrine of the abroga-
tion of treaties by war is certainly not applicable.' Rivier expresses
the same opinion. Hall, referring to the effect of war on treaties
with political objects, intended to set up a permanent state of things
by an act done once for all,' declares that compacts of this kind
must in all cases be regarded as continuing to impose obligations
until they are either suspended by a fresh agreement or are in-
validated by a sufficiently long adverse prescription;' and he further
declares that where treaties, such as conventions to abolish the droit
d' aubaine or regulate the acquisition and loss of nationality, may be
considered as suspended during war, the effects of acts previously
done under their sanction must remain unaltered."
“Says Fiore: "As to treaties between belligerents, it cannot be ad-
mitted that the state of war extinguishes them all, but only such as
6
6
EFFECT OF WAR ON TREATIES.
249
6
are incompatible with that state.' Pillet declares that the view that
the declaration of war annuls all treaties between the belligerents,' is
no longer held by anyone.'
“While forbearing to cite the many other authorities to the same
effect, we may quote from Calvo the following statement:
What effect does the declaration of war produce on treaties which
bind the contracting parties at the moment of the rupture of their
pacific relations? Are these international acts all and wholly an-
nulled in strict law, or yet do some of them fall, while others remain
in force? The solution of these questions depends naturally upon
the particular character of the engagements contracted. Thus, all
are agreeed in admitting the rupture of conventional ties concluded
expressly with a view to a state of peace, of those whose special
object is to promote relations of harmony between nation and nation,
such as treaties of amity, of alliance, and other acts of the same
nature having a political character. As to customs and postal ar-
rangements, conventions of navigation and commerce, and agree-
ments relative to private interests, they are generally considered as
suspended till the cessation of hostilities. By necessary consequence,
it is a principle that every stipulation written with reference to war,
as well as all clauses described as perpetual (qualitiées de per-
pétuelles) preserve in spite of the outbreak of hostilities their obliga-
tory force so long as the belligerents have not, by common accord,
annulled them or replaced them with others.””
Moore's Digest, vol. V, pp. 382-385; J. B. Moore in Columbia Law
Review (April, 1901), vol. 1, No. 4, pp. 209–223.
Provisions which are not annulled.
The doctrine was formerly held, and a few writers maintain it even
now, that the outbreak of war ipso facto cancels all treaties pre-
viously concluded between the belligerents, such treaties only ex-
cepted as have been concluded especially for the case of war. The
vast majority of modern writers on International Law have aban-
doned this standpoint, and the opinion is pretty general that war by
no means annuls every treaty. But unanimity as to what treaties
are or are not cancelled by war does not exist. Neither does a uniform
practice of the States exist, cases having occurred in which States
have expressly declared that they considered all treaties annulled
through war. Thus the whole question remains as yet unsettled.
Nevertheless a majority of writers agree on the following points:
(1) The outbreak of war cancels all political treaties between the
belligerents which have not been concluded for the purpose of setting
up a permanent condition of things, for instance, treaties of alliance.
110678–1917
:
250
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
(2) On the other hand, it is obvious that such treaties as have been
especially concluded for the case of war are not annulled, such as
treaties in regard to the neutralization of certain parts of the terri-
tories of the belligerents.
(3) Such political and other treaties as have been concluded for
the purpose of setting up a permanent condition of things are not
ipso facto annulled by the outbreak of war, but nothing prevents
the victorious party from imposing upon the other party in the
treaty of peace any alterations in, or even the dissolution of, such
treaties.
(4) Such nonpolitical treaties as do not intend to set up a perma-
nent condition of things, as treaties of commerce for example, are
not ipso facto annulled, but the parties may annul them or suspend
them according to discretion.
(5) So-called law-making treaties, as the Declaration of Paris
for example, are not cancelled by the outbreak of war. The same is
valid in regard to all treaties to which a multitude of States are
parties, as the International Postal Union for example, but the bel-
ligerents may suspend them, as far as they themselves are concerned,
in case the necessities of war compel them to do so.
Oppenheim, vol. II, pp. 129_131.
We are faced by a number of difficult and complicated questions
when we come to consider the effect of war upon treaties to which
the belligerents are parties. The only way in which it is possible to
deal with them satisfactorily is to adopt the method of analysis;
and even so we shall have to confess that with regard to some cases
agreement is by no means general or practice uniform. We will
begin by separating treaties to which other powers besides the bellig-
erents are parties from treaties to which the belligerents only are
parties. The first class will at once divide into great international
treaties and ordinary treaties. The latter provide for the everyday
business of international intercourse, while the former make epochs
in the development of the state system and territorial distribution of
parts of the civilized world, or take a wider range and legislate for
the society of nations, dealing with questions that affect the condi-
tion of a large portion of the human race,
Lawrence, p. 360.
Great international treaties.
In estimating the effect of war upon great international treaties
we must distinguish four cases. The first arises when the cause of
the war is quite unconnected with the treaty. Thus in 1866 Prussia
and Austria, two signatory powers of the great Treaty of Paris of
1856 which for a time settled the Eastern question, were the chief
EFFECT OF WAR ON TREATIES.
251
belligerents in a conflict which arose out of German affairs and had
no connection with the Turkish Empire and its dependencies. The
'Treaty of Paris was entirely untouched by that war, and the rights
and obligations of Austria and Prussia under it remained what they
were before. In such circumstances a great international treaty is
unaffected by the war. The second case occurs when the war does
not arise out of the treaty, but operates to hinder the performance
of some of its stipulations by the belligerents. France, for instance,
when in 1870 she was reeling under the blows of Germany, would
not have been able to make good the guarantee of the independence
and integrity of the Ottoman Empire into which she had entered
with England and Austria in 1856. In such a condition of affairs
the obligations it is impossible to fulfill must be held to be suspended
for a time and to revive again when the power in question is able
to undertake them. If there are other provisions of the treaty, which
require merely passive acquiescence and not active support, they con-
tinue to bind the crippled state, and the whole treaty remains bind-
ing on the other signatory powers, especially when it is directed to
purely humanitarian ends, such as the Final Act of the Brussels Con-
ference of 1890 for the suppression of the African slave trade. The
third case occurs when the war arises out of the treaty. This hap-
pened in 1877, when Russia and Turkey, two of the parties to the
Treaty of Paris of 1856, went to war upon the Eastern question. It
is very difficult to say what are the legal effects of such action. The
chief factor in determining them must be the will of the other signa-
tory powers. In 1877–1878 they remained neutral during the war,
but at its close put in a successful claim to be consulted in draw-
ing up the conditions of peace, on the ground that, having allowed
the state of affairs established in 1856 to be upset, they were entitled
to a voice in shaping the new arrangements which were to take its
place. If they had chosen instead to adopt the course of insisting
upon the Treaty of Paris and making war against any power that
infringed it, they would no doubt have been within their technical
right. Or, if the disagreement between the belligerents had related
to a small and unimportant point in the treaty, they might have
been allowed to settle their quarrel without interference, on the
understanding that the other stipulations remained in force unaf-
fected by the war. In the fourth place the great law-making treaties
must be considered. Their regulations contemplate international so-
ciety as a whole, and are therefore unaffected by war between two
or more of its members, except in the numerous cases when they deal
wit.. he laws of war, and then they are brought into operation by
the conflict.
Lawrence, pp. 361, 362.
252
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Ordinary treaties.
Ordinary treaties to which one or more powers besides the bellig-
erents are parties, are affected by the war according to their subject-
matter. Thus an alliance between three states would be destroyed al-
together if war broke out between two of them; a treaty of com-
merce would cease to operate between the belligerents, but would
probably remain in force between each of them and the other states
who were parties to it; and a convention with regard to maritime
capture would come into operation between the belligerents, and be-
tween each of them and the neutral signatory powers.
Lawrence, p. 362.
4 A
Treaties between belligerents only.
We have now to deal with treaties to which the belligerents only
are parties. Considered with reference to the effect of war upon
them, they fall into four classes. In the first we may put those to
which the ambiguous name of pacta transitoria has been given.
This phrase does not refer to engagements the force of which passes
away in a short space of time, such as an agreement to send a joint
punitive expedition against some savage tribe, but to treaties which,
though they may be fulfilled by one act or series of acts, set up a
permanent state of things. Boundary conventions and treaties of
cession or recognition are examples. War has no effect upon them.
They remain unchanged in spite of it. For example, the boundaries
between belligerent states may be readjusted in consequence of a
war; but till the readjustment is effected by the treaty of peace or by
completed conquest, the old territorial distribution remains legally
in force. The next class is made up of treaties of alliance, and con-
ventions binding generally to friendship and amity. It is clear that
they are entirely destroyed by the war. In the third class we may
place conventions for regulating ordinary social, political, and com-
mercial intercourse, such as treaties of commerce and extradition
treaties. The effect of war upon instruments of this kind is very
doubtful. They are, of course, suspended while the war lasts; but it
is a much disputed question whether they revive again at the con-
clusion of peace, or are destroyed by the war and require to be re-
enacted if they are to come into force again when it is over. The
practice of States exhibits a lamentable absence of uniformity. Some
treaties of peace expressly stipulate for the revival of postal and
commercial agreements subsisting before the war, the inference being
that the stipulation was necessary to give force to the revived arrange-
ments. Other treaties contain no covenant for revival, and yet i
such circumstances agreements of the kind we are considering have
been acted upon after the peace on the understanding that they were
EFFECT OF WAR ON TREATIES,
253
restored to efficiency by it. In judicial decisions we find a nearer
approach to a fixed rule. The Supreme Court of the United States
laid down in the case of the Society for the Propagation of the Gospel
v. the Town of New Haven 1 that the stipulations regarding con-
fiscations and alienage in the treaties of 1783 and 1794 between the
United States and Great Britain were of a permanent character and
were not, therefore, abrogated by the War of 1812, though their en-
forcement was suspended while it lasted. And in England in 1830
the master of the rolls decided in the case of Sutton v. Sutton 2 in
favor of the permanency of the Treaty of 1794, which gave to citizens
of each country and their heirs and assigns the right to hold land in
the other. With these facts before us, we may venture to say that,
though no rule can be laid down as undoubted law, it is best to hold
on general principles that treaties of the kind we are now consider-
ing are merely suspended by war and revive at the conclusion of
peace, unless the parties expressly annul them or substitute other
arrangements for them. The fourth and last class contains treaties
which regulate the conduct of the contracting parties toward each
other when they are belligerents or when one is a belligerent and the
other is neutral. Cases in point are afforded by the numerous agree-
ments giving to the subjects of each of the contracting powers the
right to remain in the territory of the other should the two coun-
tries be at war and by stipulations for the regulation of maritime
capture. The effect of war on all treaties of this class is to bring
them into active operation.
Lawrence, pp. 362-364.
What we have said above applies not only to whole treaties, but
also to separate stipulations in treaties dealing with several subjects.
With the aid of the table printed on the next page it is hoped that the
careful reader will be able to see his way through this intricate sub-
ject. The sweeping statements to be found in diplomatic corre-
spondence concerning the effect of war on treaties may be passed
over with little respect. They are generally made in support of a
foregone conclusion. The method of observation, analysis, and classi-
fication is the only one capable of yielding fruitful results.
1 Wheaton, Reports of U. S. Supreme Court, Vol. VIII, p. 494.
2 Russell and Mylne, Chancery Reports, Vol. I, p. 663.
254
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Table showing the effect of war on treaties to which the belligerents are parties.
ers,
or
1
(a) When the war is Unaffected.
quite unconnected
with the treaty.
(6) When the war does Unaffected as regards the
not arise out of the other stipulations, and
treaty, but prevents entirely unaffected with
the performance of regard to neutral siy-
(A) Great in- some of its stipula- natory powers.
ternational tions by the bellig-
treaties. erents.
(c) When the war arises Effect doubtful, depend-
I. Treaties to
out of the treaty. ing chiefly on will of
which other
neutral signatory pow-
powers besides
the belligerents
(d) When the treaty is Either unaffected,
are parties.
a law-making treaty. brought into operation,
by the war.
(B) Ordinary treaties to which one or Effect depends upon sub-
inore powers besides the belligerents ject-matter. Generally
are parties.
suspended or abrogated
with regard to bellig-
erents; unaffected with
regard to third parties.
(a) Pacta transitoria.
Unaffected.
(6) Treaties of alliance.
Abrogated
(6) Treaties for regulating ordinary so- Effect doubtful. Gener-
cial and commercial intercourse, such ally the treaty of peace
as postal and commercial treaties,
II. Treaties to
deals with such matters;
which the bel-
conventions about property, etc. if not, it is best to take
ligerents only are
the stipulations as mere-
parties.
ly suspended during
the war.
(d) Treaties regulating the conduct of Brought into operation by
signatory powers towards each other
as belligerents, or as belligerent and
neutral.
Lawrence, pp. 364, 365.
war.
General rule of abrogation-exceptions.
The outbreak of war removes the controversy out of which it arose
from the domain of law. It will be settled at the peace on such terms
as the superiority of force decides; and if it turned on the disputed
interpretation of a treaty, and such interpretation is not declared at
the peace for the future, the treaty will be regarded as annulled.
There cannot be a contract unless the minds of the parties are agreed,
and the war will have shown that their minds are not agreed in the
treaty in question.
Further, war interposes a practical obstacle to dealing on the foot-
ing of law even with obligations which have not been in dispute, and
it may result in such a change of the relative strength of the parties
and in the surrounding circumstances that the parties, or at least
the stronger of them, will not desire that those obligations should
continue. It is therefore the general rule that war abrogates the
treaties existing between the belligerents, and that their revival, if
desired, must be expressly provided for in the treaty of peace.
EFFECT OF WAR ON TREATIES.
255
To this rule however there are certain exceptions. First, all con-
ventional obligations as to what is to be done in a state of war must
continue in force, or they would have no operation at all. Such is
the Anglo-French convention providing for a continuance of the
postal service between the two countries in the case of a war between
them, and such are the St. Petersburg declaration against the use of
explosive bullets, and all other conventions relating to the laws of
war. Another instance is the provision in very numerous treaties
for the treatment which the subjects of the respective parties and
their property are to receive in case of war between them.
Secondly, transitory or dispositive treaties, including all those
which are intended to establish a permanent condition of things,
form another exception. Not only treaties of cession, boundary,
recognition of independence or of a dynasty, and such like fall under
this head, but also those stipulations which confer rights intended
for use in daily life and having no conceivable connection with the
causes of war or peace. An example is the clause in the treaty of
1795 between Great Britain and the United States giving to their
respective subjects and citizens the right to hold and transmit land
then held by them in the other country, notwithstanding their or
their heirs and assigns being aliens. The treaty of 1760 between
France and Sardinia, now applying to Italy, relative to the execu-
tion in either country of judgments rendered by the courts of law
of the other country, and the conventions of 12 June 1902 and 17
July 1905 between numerous states, unhappily not including the
penitus toto divisos orbe Britannos, on important parts of private
international law, furnish other examples. All these are delimita-
tions of rights as real and implying permanence as plainly as de-
limitations of boundaries. During a war the rights may be dormant
for want of the opportunity to enforce them, just as boundaries may
be transgressed by arms; but the peace, when concluded, is a peace
with and on behalf of each belligerent state with all its known equip-
ment of territory and permanent rights, and needs no expression to
that effect.
A third exception is that of treaties establishing arrangements
to which third powers are parties, such as guarantees and postal
and other unions. These cannot be abrogated by the war, because
it cannot affect the rights of third parties. There may during the
war be practical difficulties in the way of carrying out their pro-
visions, but at least a belligerent ought not actively to violate them
unless they are of a non-political nature and his necessity is great.
Guarantees are political, and the plea that he is at war with another
party to them will not avail a power which actively violates them
to the detriment of the state guaranteed. But although treaties
making political arrangements are not destroyed by the mere fact
256
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of a war in which all the parties to them are not engaged, it may
happen that one of the belligerents is so weakened by the war or
by the terms of peace that he can no longer fulfill a guarantee or
some other political stipulation to which he has agreed, or that to
do so would be a greater burden than in his reduced condition he
can be expected to bear. Then he will be freed, not by any rule of
law but by the force of circumstances of which those with whom
he has contracted must take account.
Outside the exceptions which have been discussed, treaties between
belligerents do not survive the outbreak of the war.
At the peace
there is no presumption that the parties will take the same view as
before the war of their interests, political, commercial or other. It
is for them to define on what terms they intend to close their inter-
lude of savage life and to reenter the domain of law. Those terms
are at their disposal or at that of the stronger, and if the price ex-
acted for peace is heavy, it ought not to be spoken of as a fine or
penalty. Indignation at what was regarded as an unjust pretension,
or resentment at what is regarded as a too obstinate resistance, may
have contributed to fix it, but law has had no concern in fixing it.
It is the last act of the lawless period, and both opinion and practice
allow the victor to take advantage of that period by insisting on
terms having no relation to the cause or occasion of the war. The
terms may be just; more often the consciousness of their injustice
is obscured in the victor's mind by his excited feelings, but in any case
the genius of law does not inhabit a temple shared by the god of
battles, and only returns when he has withdrawn from it.1
Westlake, vol. 2, pp. 32–35.
Controversy between United States and Great Britain.
By the treaty of 1783 Great Britain agreed that the inhabitants
of the United States should have liberty to fish in the waters of
Newfoundland and all other parts of H. B. M's dominions in Amer-
ica. The peace of 1815 after the war of 1812 was silent as to this,
and the United States thereupon contended and Great Britain de-
nied that the liberty continued. The former did not deny the general
rule that treaties are abrogated by war, and the latter did not deny
1 On the subject of this section there is a difference of statement, probably more than
of opinion, since those who prefer to say that treaties are not abrogated but suspended
by war between the parties seem to build mainly on what those who make abrogation the
rule have to treat as exceptions. Also the exception of transitory or dispositive treaties
admits, as we have seen, of differences of opinion whether particular cases fall within
it. Those who have to draw up treaties of peace ought never to omit the distinct
expression of what is intended as to the old stipulations between the parties, and they
seldom make such an omission. They will perhaps be less likely to make it if they are
under the impression that it would lead to the loss of possibly valuable treaties. Hall's
sec. 125, pp. 399–405 of the 4th edition, is worth reading, but, as might be expected from
the nature of the subject, hardly leads to more definite conclusions than those here given.
A similar remark may be made on the rules voted by the Institute of International Law
at Christiania in 1912 on the effects of War on International Conventions.
EFFECT OF WAR ON TREATIES.
257
are an
that engagements “in the nature of perpetual obligation
exception to that rule. But the former argued that the liberty in
question was an integral part of the partition made in 1783 between
the two powers, and the latter that it was of such a nature that it
could only rest on “conventional stipulation." See Wheaton's
Elements, part 2, c. 4, sec. 8, and part 3, c. 2, sec. 9, with Lawrence's
notes, and Hall, sec. 27. By a convention in 1818 the United States
expressly renounced all claim to the liberty except so far as given
by that convention, and the incident may suggest an exception to
the exception now under consideration, namely that the stipulation
of a servitude to be enjoyed in the territory or territorial waters of
the other belligerent is not one that can revive after a peace which
does not mention it. Wheaton does not admit this character of
stipulations of servitude, being evidently under the influence of his
country's view in the diplomatic discussion here referred to. See
the volume on Peace, 2nd. edn., pp. 369, 370, and the Fisheries award
of 1910.
Westlake, vol. 2, pp. 33, 34, note.
1
Provisions which are not abrogated.
It is now universally recognized that the obligations of treaties
which either contemplate or are expressly declared to be unaffected
by war are not impaired thereby. The second Convention, however,
contained no such stipulation; and the incident may therefore be
said, having regard both to the conclusion arrived at and the grounds
on which it was based, to sanction the view, which is now also gen-
erally accepted, that the outbreak of war will not of itself discharge
or extinguish debts or other financial obligations previously sub-
sisting either between the belligerent States themselves or between
one of them and the subjects of the other. This rests in part on the
fact that such engagements are contracted on the faith of the na-
tional honour; but in part also on an appreciation of the fact that
but for the existence of such an understanding the procuring of
loans, especially from individuals or corporations, would be at once
more difficult and more costly. In the case of loans by individuals,
this principle is now probably fully recognized; but as regards
financial obligations subsisting between the hostile States themselves,
its precise limits are, as we shall see, not so well ascertained.
Cobbett, pt. II, p. 40.
Divergence of opinion.
On the question of the effect of war on treaties previously subsist-
ing between the belligerents there is much diversity of opinion.
Some writers opine that such treaties are only suspended by war,
258
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
unless they are from their very nature or terms contingent on peace.
Others opine that all treaties are abrogated by war, subject, however,
to certain exceptions, the range of which varies with different writers.
Others, again, draw a distinction between treaties proper, such as
treaties of commerce, extradition, and alliance, which are said to be
abrogated by war and not to revive on the restoration of peace except
by express stipulation, and what are called “transitory conventions,"
such as cessions of territory, settlements of boundary, and grants
of servitudes, which are not generally affected by war, although
liable, of course, to be displaced by some new disposition made on the
conclusion of peace. Beneath this divergence of opinion, however,
there is a certain element of common agreement, in so far as some
kinds of treaties are universally recognized, either by way of rule
or exception, as surviving the war, whilst other kinds again are
equally recognized as being abrogated by war.
(ii.) Practice.—With respect to the practice of States, it was at
one time usual on the outbreak of war for each belligerent to make a
public proclamation that all treaty obligations between the parties
were at an end. This practice has long since ceased; but it is prob-
ably responsible in some degree for the prevalent view that the
effect of war is to abrogate all treaties which are not in the nature
of dispositions. Hence in recent times it has been the usual although
not invariable practice for States that have been at war to assume
that treaties have been abrogated, and on the restoration of peace
to revive expressly all treaties which have not lost their applica-
tion and which the parties desire to maintain. Such an assumption,
at any rate, appears to have prompted the arrangements that were
made by the Treaty of Paris, 1856, on the close of the Crimean war.
Again, on the close of the war of 1859, all prior treaties were con-
firmed by the Treaty of Zurich as between Austria and Sardinia;
although not as between Austria and France. At the close of the
war of 1866, all prior treaties were revived as between Austria and
Italy; and also, in so far as they remained applicable under the
altered conditions, between Austria and Prussia. At the close of
the Franco-Prussian war in 1871, treaties of commerce, navigation,
extradition, and certain conventions relating to copyright and rail-
ways were expressly confirmed, although no mention was made of
other treaties. At the close of the Spanish-American war, no pro-
vision with respect to treaties appears to have been made by the
Treaty of Paris, 1898; but by the subsequent Treaty of Madrid, 1902,
Art. 29, it was provided that all treaties made between the parties
prior to the Treaty of Paris should be abrogated, with the exception.
of a treaty of 1834. After the blockade of the Venezuelan ports by
Great Britain in 1902, it was agreed by a protocol of the 13th Febru-
EFFECT OF WAR ON TREATIES.
259
ary, 1903, that inasmuch as it might be contended that a state of war
had existed and that all treaties had been abrogated, it should be
recorded by an exchange of notes that a certain treaty of 1834, which
it was desired to continue, should be renewed and confirmed. The
Treaty of Portsmouth, 1905, which put an end to the Russo-Japanese
war, contains no express provision on the subject, beyond a recital that
the prior treaty of commerce and navigation had been annulled by
the war, and a stipulation that pending the conclusion of a new
treaty the subjects of each party should be treated by the other as
favourably as those of the most favoured nation.
The rule of Abrogation and its exceptions.-Having regard to this
divergence of opinion and the absence of complete uniformity in
practice, it is probably safer to assume it to be the general rule, that
treaties, previously subsisting between the belligerents are abrogated
by war; and to leave it to the parties to revive them either expressly
or impliedly on the restoration of peace if they think fit. And this
conclusion is confirmed not only by the common practice, but also
by the consideration that it would otherwise often be difficult, in
view of the changes wrought by the war in the circumstances and
relations of the parties, to determine precisely how far prior treaties
retained their applicability. This rule is, however, subject to a
great variety of exceptions. In dealing with these it will be con-
venient to distinguish between treaties to which the belligerents
only are parties and treaties to which other Powers are parties.
(1) Amongst, treaties of the former kind, we may exempt from
the primary rule of abrogation the following classes :-(a) Treaties
which expressly contemplate a state of war, or which are ex-
pressly saved from being affected by war. (b) Treaties which
create or define rights in rem; such as treaties ceding territory, defin-
ing boundaries, creating servitudes or recognizing' international
status. This exception rests on the fact that such treaties supply in
international transactions the place of dispositions or settlements in
private life; and that once such rights have been created or recog-
nized they then depend not on treaty but on the general law, even
though the treaty may remain as a source or record of title. But this
will not apply to rights which clearly appear, either from the terms
of the treaty or the circumstances of the case, to be in the nature
of merely temporary concessions. Moreover, even the rights that
accrue under dispositive treaties may be suspended as to their exer-
cise during the war, or displaced by other arrangements made in
consequence of it, although they will otherwise revive automatically.
(c) Treaties which, although not in the nature of dispositions, are
nevertheless intended by the parties to set up some permanent rela-
tion or arrangement; such as treaties regulating the acquisition of
260
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
nationality, or mutually conceding to subjects of either party the
privilege of holding lands within the territory of the other. The
operation of such treaties again may be suspended by the occurrence
of war; but for the rest, they will retain their validity, and their
operation will revive on the restoration of peace without express
renewal unless positively rescinded. But where war is resorted to
as a means of compelling the fulfilment of a treaty, and especially
where it arises out of a dispute as to the meaning of a treaty, it
would seem that the treaty must be deemed to have been annulled
by the war, unless revived by express stipulation. (2) With respect
to treaties to which other Powers than the belligerents are parties,
these will not, in general, be affected by the outbreak of war between
particular signatories, but will continue binding as regards other
Powers, and will revive even as between the belligerents themselves
when the war comes to an end. So the great law-making treaties,
previously referred to remain unaffected by war between the parties.
And even where such treaties are subject to denunciation, it is fre-
quently stipulated that they shall remain obligatory for a year from
the time at which the notice of denunciation is given; which would
ordinarily serve to prevent them from being denounced in anticipa-
tion of war. The great international settlements are also unaffected
by war between particular signatories; and even if the war should
arise over some matter contained in the treaty it would seem-in so
far as the matter can be said to be governed by legal rules—that no
new arrangement can strictly be made without the consent of the
other signatories, although this is frequently disregarded in prac-
tice. Nevertheless, where a treaty of this character imposes obliga-
tions of an active kind, it is recognized that the discharge of such
obligations may be temporarily suspended by the existence of a state
of war between the parties or some of them; both by reason of the
impossibility of united action, and of the fact that an active fulfil-
ment of the treaty obligations might be inconsistent with the require-
ments of self-preservation as regards the Powers involved in the war.
Such, for example, would have been the position of France, in 1870,
as regards the guarantee of the integrity of the Ottoman Empire
to which she was a party under the Treaty of Paris, 1856. Treaties,
moreover, which are from their very nature dependent on a continu-
ance of friendly relations, such as treaties of commerce, are neces-
sarily abrogated by war so far as the actual belligerents are con-
cerned, even though other Powers may be parties thereto. What
has been said with respect to treaties generally may also be taken to
apply to particular stipulations contained in a treaty; for the same
treaty may contain stipulations some of which are and some of which
are not abrogated by war.
Cobbett, pt. II, pp. 40–44.
EFFECT OF WAR ON TREATIES.
261
As a general rule, subject to exceptions in peculiar cases, such
obligations of treaties as are transient are considered as dissolved by
a subsequent war between the parties.
Wharton's Digest, vol. II, p. 43; Mr. Adams, Sec. of State, to Mr. Rush,
Nov. 6, 1817, MSS. Inst., Minister's.
“I this day received a letter from C. A. Rodney, the Senator from
Delaware, with a new English authority against the doctrine that all
treaties are abrogated by war. It is the opinion of Mr. Fox, ex-
pressed in Parliament in the debate on the definitive treaty of peace
of 1783."
The treaty of 1783, so far as concerns boundaries and fisheries and
other national privileges and rights, was not abrogated by the war
of 1812.
Wharton's Digest, vol. II, pp. 44, 45; Mr. J. Q. Adams, the Fisheries
and the Mississippi, 55 ff. infra, $$ 150, 300 ff.
“It cannot be necessary to prove that the treaty of 1783 is not,
in its general provisions, one of those which, by the common under-
standing and usage of civilized nations, is or can be considered as
annulled by a subsequent war between the same parties. To suppose
that it is would imply the inconsistency and absurdity of a sovereign
and independent state, liable to forfeit its right of sovereignty by
the act of exercising it on a declaration of war."
Wharton's Digest, vol. II, p. 44; Mr. Gallatin and Mr. Rush, commis-
sioners, 1817, quoted in 2 Lyman's Diplom. U. S. 91. And see more
fully infra, $$ 150, 304.
“A state of war abrogates treaties previously existing between the
belligerents, and a treaty of peace puts an end to all claims for
indemnity for tortuous acts committed under the authority of one
Government against the citizens or subjects of another, unless they
are provided for in its stipulations. A treaty of peace which would
terminate the existing war without providing for indemnity would
enable Mexico, the acknowledged debtor, and herself the aggressor
in the war, to relieve herself from her just liabilities. By such a
treaty our citizens who hold just demands against her would have
no remedy against either Mexico or their own Government. Our
duty to these citizens must forever prevent such a peace, and no
treaty which does not provide ample means of discharging these
demands can receive my sanction."
Wharton's Digest, vol. II, p. 44; President Polk, Third Annual Mes-
sage, 1847.
“The general rule of international law is that war terminates all
subsisting treaties between the belligerent states. Great Britain has
262
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
maintained this rule to its utmost extent." This, however, is subject
to the limitations above stated as to treaty of 1783.
Wharton's Digest, vol. II, p. 44; Mr. Buchanan, Sec. of State, to Mr.
Pakenham, July 12, 1845, MSS. Notes, Gr. Brit. See Mr. Bayard,
Sec. of State, to Messrs. Lehman, June 23, 1885, cited infra, $ 150.
War does not by itself abrogate treaties or portions of treaties
which vest rights of property.
Wharton's Digest, vol. II, p. 44; Society, &c., v. New Haven, 8 Wheat.,
464; Carneal v. Banks, 10 Wheat., 181. See Schooner Rapid, 1
Gall., 303.
Kent's Commentaries (vol. i, page 420) says:“As a general rule, the
obligations of treaties are dissipated by hostilities. But if a treaty
contain any stipulations which contemplate a state of future war,
and make provision for such an exigency, they preserve their force
and obligation when the rupture takes place. All those duties of
which the exercise is not necessarily suspended by the war subsist in
their full force.”
Wharton's Digest, · vol. II, pp. 44, 45; on the question of the effect
of war on treaties, see further Field's Int. Code, $ 905, citing
Bluntschli, $ 718; Society, &c., v. New Haven, 8 Wheat., 464; debate
in the House of Commons on the declaration of Paris of 1856; dis-
patch of Mr. Marcy to Mr. Mason, of Dec. 8, 1856; speeches of Sir
George Lewis and Mr. Bright of Mar. 11 and 17, 1862, and of the
Earl of Derby of Feb. 7, 1862; Phill. Int. Law, iii, app. 21 ; Dana's
Wheaton, Note 143, p. 352.
Treaties stipulating for a permanent arrangement of territorial
and other national rights are, at most, suspended during war, and
revive at peace, unless they are waived by the parties, or new and
repugnant stipulations are made.
Wharton's Digest, vol. II, p. 45; Society, &c., v. New Haven, 8 Wheat.,
464; Mr. J. Q. Adams, the Fisheries and the Mississippi, 55 ff., infra,
§ $ 150, 300 ff.
In Sutton v. Sutton, 1 R. & M., 663, the question whether American
subjects who hold land in England were to be considered in respect
to such lands as aliens or subjects of Great Britain, or whether the
war of 1812 had determined the treaty of 1794, the master of the rolls
said: “ The privileges of natives being reciprocally given, not only to
actual possessors of land, but to their heirs and assigns, it is a reason-
able construction that it was the intention of the treaty that the
operation of the treaty should be permanent, and not depend upon
the continuance of a state of peace.'
“Stipulations which relate to boundaries, to the tenure of property,
to public debts, etc., and which are permanent in their nature, are
suspended by war, but revive as soon as hostilities cease. The treaties
of 1783 and 1794 between the United States and Great Britain,
EFFECT OF WAR ON TREATIES.
263
respecting confiscation and alienage, were of a permanent character,
and the Supreme Court held that they were not abrogated by the
war of 1812, although their enforcement was, for the time being,
suspended. Stipulations relating to prizes, prisoners of war, block-
ades, contraband, etc., are unaffected by a declaration of war between
the contracting parties, and can only be annulled by new treaties,
or in the manner provided in the instruments themselves."
Wharton's Digest, vol. II, p. 45; 1 Halleck's Int. Law (Baker's ed.),
242, citing 1 Kent's Com., 177; 1 Benton's Thirty Years, 487; Bas v.
Tingey, 4 Dall., 37.
By Article VI. of the treaty of peace between the United States
and Great Britain of September 3, 1783, it was declared that there
should be no future confiscations made, nor any prosecutions com-
menced against any person or persons for, or by reason of the part
which he or they have taken in the present war," and that no per-
son should," on that account, suffer any future loss or damage, either
in his person, liberty or property." By Article IX. of the treaty
between the same powers of November 19, 1794, it was agreed “that
British subjects who now hold lands in the territories of the United
States, and American citizens who now hold lands in the dominions
of His Majesty, shall continue to hold them according to the nature
and tenure of their respective estates and titles therein; and may
grant, sell or devise the same to whom they please, in like manner as
if they were natives; and that neither they nor their heirs or assigns
shall, so far as may respect the said lands and the legal remedies in-
cident thereto, be regarded as aliens.” By Article XXVIII. the
first ten articles of the treaty were declared to be a permanent," while
the subsequent articles, with one exception, were “limited in their
duration to twelve years."
The question whether the stipulations of Article IX. were affected
by the war of 1812 came before the Supreme Court of the United
States in the case of the Society for the Propagation of the Gospel,
a British association, against the Town of New Haven; and a decision
was rendered to the effect that the stipulations remained in full force.
The court, in the course of its opinion, said: “We think ... that
treaties stipulating for permanent rights, and general arrangements,
and professing to aim at perpetuity, and to deal with the case of war
as well as of peace, do not cease on the occurrence of war, but are,
at most, only suspended while it lasts; and unless they are waived by
the parties, or new or repugnant stipulations are made, they revive
in their operation at the return of peace."
Moore's Digest, vol. 5, pp. 373–375, citing Society for the Propagation of
the Gospel v. New Haven (1823), 8 Wheat. 464, 494.
See, also, Carneal v. Banks, 10 Wheat. 181; schr. Rapid, 1 Gall. 295, 303.
In the former case it was held that titles to land in the United States acquired
by French subjects under the sanction of the treaty of 1778 were not divested by
the abrogation of that treaty or the expiration of the convention of 1800.
1
264
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Seven years later, in 1830, the same question was decided by the
court of chancery in England, in the case of Sutton v. Sutton, in
which a citizen of the United States claimed the right, under Article
IX. of the treaty of 1794 to hold and convey, in spite of his alienage,
certain real estate in London. It appeared that in 1797 an act of
Parliament (37 Geo. III, c. 97) was passed to carry the treaty into
effect. Of this act, sections 24 and 25 related to Article IX., and
the last section, which was the 27th, declared : “This act shall con-
tinue in force so long as the said treaty between His Majesty and the
United States of America shall continue in force, and no longer.” It
was argued, both upon the strength of this section and upon general
principles, that, as the result of the war of 1812, the treaty of 1794
had ceased to be in force; that "it was impossible to suggest that
the treaty was continuing in force in 1813," that is to say, during the
existence of the war; that it “necessarily ceased with the commence-
ment of the war;" that “the 37 G. 3, c. 97, could not continue in
operation a moment longer without violating the plainest words of
the act;" and that the word “permanent " was used, “not as synony-
mous with 'perpetual of everlasting, but in opposition to a period
expressly limited.”
It is to be observed that counsel impliedly conceded that if the
word “perpetual” had been employed in the article, there would have
been no doubt as to its survival.
Sir John Leach, Master of the Rolls, decided that the article con-
tinued in full force at all times, saying:
The relations, which had subsisted between Great Britain and
America, when they formed one empire, led to the introduction of
the ninth section of the treaty of 1794, and made it highly reasonable
that the subjects of the two parts of the divided empire should, not-
withstanding the separation, be protected in the mutual enjoyment
of their landed property; and, the privileges of natives being recipro-
cally given, not only to the actual possessors of lands, but to their
heirs and assigns, it is a reasonable construction that it was the
intention of the treaty that the operation of the treaty should be
permanent, and not depend upon the continuance of a state of peace.
“ The act of the 37 G. III. gives full effect to this article of the
treaty in the strongest and clearest terms; and if it be, as I consider
it, the true construction of this article, that it was to be permanent,
and independent of a state of peace or war, then the act of Parlia-
ment must be held, in the twenty-fourth section, to declare this per-
manency; and when a subsequent section provides that the act is to
continue in force, so long only as a state of peace shall subsist, it can
not be construed to be directly repugnant and opposed to the twenty-
fourth section, but is to be understood as referring to such provi-
66
EFFECT OF WAR ON TREATIES.
265
sions of the act only as would in their nature depend upon a state
of peace.”
A decision was therefore rendered in favor of the right claimed by
the American citizen.
Moore's Digest, vol. 5, pp. 373, 374; Sutton v. Sutton, 1 Russel & Mylne,
663.
“ Your letter of the 10th instant has been received. It asks whether
there was in 1872 any treaty between the United States and Great
Britain relative to the inheritance of lands situated in this country
by British subjects.
“The only provision found in any treaty between the United States
and Great Britain touching this point is in the ninth article of the
treaty of 1794, whereby it was agreed that ' British subjects who now
hold lands in the territories of the United States, and American
citizens who now hold lands in the dominions of His Majesty, shall
continue to hold them according to the nature and tenure of their
respective estates and titles therein; and may grant, sell, or devise
the same to whom they please in like manner as if they were natives;
and that neither they nor their heirs or assigns shall so far as may
respect the said lands and the legal remedies incident thereto, be
regarded as aliens.'
“The operation of this stipulation is limited to lands held in the
United States and Great Britain respectively, in 1794, and as to the
subsequent title to lands so held at that time, the effect of the treaty
may be deemed permanent.
“Permit me to refer you to the cases of Shanks and others against
Dupont and others, 3 Pet. 242, and to New York v. Clarke, 3 Wheat.
1, for legal decisions as to the construction of the 9th article of the
treaty.
“The treaty of 1794, however, is held by the highest authorities
to have actually lapsed by reason of the subsequent state of war in
1812–'15, and neither the treaty of Ghent (1814) nor any treaty be-
tween the two countries since then has re-enacted its provisions in
whole or part.
There is, therefore, no treaty engagement of any character be-
tween Great Britain and the United States, which would give to the
subjects or citizens of the respective countries the original right to
acquire since 1794 any real property by inheritance or purchase, ex-
cept in accordance with the laws of the State or Territory where the
property is situated.”
Moore's Digest, vol. 5, pp. 374, 375; Mr. Bayard, Sec. of State, to
Messrs. L. and E. Lehman, June 23, 1885, 156 MS. Dom. Let. 80.
110678–1918
66
266
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
“The general rule of international law is that war terminates all
subsisting treaties between the belligerent powers. .. Perhaps the
only exception to this rule, if such it may be styled, is that of a treaty
recognizing certain sovereign rights as belonging to a nation which
had previously, existed independently of any treaty engage-
ments. ... It will scarcely be contended that the Nootka Sound
convention belongs to this class of treaties."
Moore's Digest, vol. 5, p. 375; Mr. Buchanan, Sec. of State, to Mr.
Packenham, British min., July 12, 1845, 34 Br. & For. State Papers,
93, 97.
Mr. Packenham, July 29, 1845, replied: The Nootka Sound convention
braced, in fact, a variety of objects; it partook, in some of its stipulations, of
the nature of a commercial convention; in other respects it must be considered
as an acknowledgment of existing rights, an admission of certain principles
of international law, not to be revoked at the pleasure of either party, or to be
set aside by a cessation of friendly relations between them.” (Id. 102.)
em-
“A state of war abrogates treaties previously existing between the
belligerents.
Moore's Digest, vol. 5, p. 375; President Polk, annual message, Dec.
7, 1847. See, however, infra, $ 1053.
Stipulations in treaties having sole reference to the exercise of
belligerent rights can not be applied to govern cases exclusively of
another nature, and belonging to a state of peace.
Moore's Digest, vol. 5, p. 375; The Marianna Flora, 11 Wheat. 1.
April 23, 1898, on the outbreak of war with the United States, the
Spanish Government issued a decree which, among other things, de-
clared: “The war existing between Spain and the United States
terminates the treaty of peace and friendship of the 27th October,
1795, the protocol of the 12th January, 1877, and all other agree-
ments, compacts, and conventions that have been in force up to the
present between the two countries."
By Article XIII of the treaty of October 27, 1795, it was agreed
that, if a war should break out between the two nations, one year
after the declaration of war should be allowed to the merchants in
the cities and towns where they should live for collecting and trans-
porting their goods and merchandise. A rumor having got abroad
that the Spanish Government contemplated the issuance of a decree
of expulsion against citizens of the United States who might be
within the Spanish dominions, the Department of State caused the
attention of the Spanish Government to be drawn to this stipulation
through the British ambassador at Madrid. The Spanish Govern-
ment replied that it considered all treaties between the two countries
to be at an end, but offered to enter into a special convention for the
provisional application during the war of the stipulation in question.
The United States declined to accept this proposal on the ground
EFFECT OF WAR ON TREATIES.
267
that the stipulation, instead of being abrogated by the state of war,
must be considered as finding therein its full force and effect. Here
the correspondence closed. No decree of expulsion was issued.
Mr. Moore, Act. Sec. of State, to Mr. Hay, amb. to England, tel., April 20, 1898,
For. Rel. 1898, 972; Mr. Hay to Mr. Day, Sec. of State, tel., May 7, 1898, ibid. ;
Mr. Day to Mr. Hay, tel., May 8, 1898, ibid. ; Mr. Hay to Mr. Day, No. 387, May
10, 1898, and No. 393, May 14, 1898, id. 973; Mr. Day to Mr. Hay, No. 668, June
1, 1898, id. 974.
* If it were true that war abrogates such stipulations (as Art. XIII. of the
treaty of 1795), they would be subject to the singular fate of ceasing to be in
force whenever they should become applicable.” (Mr. Moore, Act.. Sec. of State,
to Mr. Wheeler, May 3, 1898, 228 MS. Dom. Let. 245.)
See, also, Mr. Moore, Assist. Sec. of State, to Mr. Heymann, June 13, 1898, 229
MS. Dom. Let. 308.
That treaties applicable to a state of war are not abrogated by war, see Law-
rence's Wheaton (1863), 472–473, and authorities there cited.
Moore's Digest, vol. 5, pp. 375, 376.
By a decree of the Spanish government, issued April 23, 1898, all
treaties between the two countries were declared to be terminated by
the war which had then broken out. In the treaty of peace, con-
cluded at Paris, Dec. 10, 1898, there is no stipulation for the revival
of such treaties. By Article VII. the contracting parties “mutually
relinquish all claims for indemnity," but this relinquishment is ex-
pressly restricted to claims “ that may have arisen since the begin-
ning of the late insurrection in Cuba and prior to the exchange of
ratifications.” During the negotiation of the treaty, however, the
American commissioners proposed an article by which all the treaties
in existence between the two countries at the outbreak of the war
were enumerated and declared to continue in force. This article was
taken up for consideration at the conference held on the 8th of De-
cember. The president of the Spanish commission stated that the
Spanish commissioners were unable to accept the article, but added :
“Some of the treaties to which it referred were obsolete or related to
conditions which no longer existed, and it would involve a more ex-
tended examination than the joint commission was in a position to
give. But this does not imply that the two governments might not
take up the subject themselves."
Ex. Doc. B, 55 Cong. 2 sess., part 2, p. 254; S. Doc. 62, 55 Cong. 3 sess. part 1.
“All treaties, agreements, conventions, and contracts between the United
States and Spain prior to the treaty of Paris shall be expressly abrogated and
annulled, with the exception of the treaty signed the 17th of February, 1834,
for the settlement of claims which is continued in force by the
present convention.” (Art. XXIX, Treaty of Friendship and General Rela-
tions, between the United States and Spain, July 3, 1902.)
As to Art. XI. of the treaty of 1795, see Mr. Hay, Sec. of State, to Messrs.
Turner, McClure, and Ralston, March 28, 1900; 244 MS. Dom. Let. 59.
Moore's Digest, vol. 5, pp. 376, 377.
1
268
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In the Case of the Society for the Propagation of the Gospel v.
New Haven (8 Wheat. 492-495), the Court said:
“ The last question respects the effect of the late war between
Great Britain and the United States, upon rights existing under the
treaty of peace. Under this head, it is contended by the defendant's
counsel, that although the plaintiffs were protected by the treaty of
peace, still, the effect of the last war was to put an end to that treaty,
and, consequently, to civil rights derived under it, unless they had
been revived and preserved by the treaty of Ghent. If this argument
were to be admitted in all its parts, it nevertheless would not follow,
that the plaintiffs are not entitled to a judgment on this special ver-
dict. The defendants claim title to the land in controversy, solely
under the act of 1794, stated in the verdict, and contend, that by force
of that law, the title of the plaintiffs was divested. But if the court
has been correct in its opinion upon the two first points, it will follow
that the above act was utterly void, being passed in contravention
of the treaty of peace, which, in this respect, is to be considered as
the supreme law. Remove that law, then, out of the case, and the
title of the plaintiffs, confirmed by the treaty of 1794, remains unaf-
fected by the last war, it not appearing from the verdict, that the
land was confiscated, or the plaintiffs' title in any way divested, dur-
ing the war, or since, by office found, or even by any legislative act.
But there is a still more decisive answer to this objection, which
is, that the termination of a treaty cannot divest rights of property
already vested under it. If real estate be purchased or secured under
a treaty, it would be most mischievous to admit, that the extinguish-
ment of the treaty extinguished the right to such estate. In truth,
it no more affects such rights, than the repeal of a municipal law
affects rights acquired under it. If, for example, a statute of
descents be repealed, it has never been supposed, that rights of prop-
erty already vested during its existence, were gone by such repeal.
Such a construction would overturn the best established doctrines of
law, and sap the very foundation on which property rests.
“But we are not inclined to admit the doctrine urged at the bar,
that treaties become extinguished, ipso facto, by war between the
two governments, unless they should be revived by an express or
implied renewal on the return of peace. Whatever may be the lati-
tude of doctrine laid down by elementary writers on the law of na-
tions, dealing in general terms, in relation to this subject, we are
satisfied, that the doctrine contended for is not universally true.
There may be treaties of such a nature, as to their object and import,
as that war will put an end to them; but where treaties contemplate
å permanent arrangement of territorial, and other national rights,
or which, in their terms, are meant to provide for the event of an
EFFECT OF WAR ON TREATIES.
269
intervening war, it would be against every principle of just interpre-
tation to hold them extinguished by the event of war. If such were
the law, even the treaty of 1783, so far as it fixed our limits, and
acknowledged our independence, would be gone, and we should have
had again to struggle for both upon original revolutionary prin-
ciples. Such a construction was never asserted, and would be so
inonstrous as to supersede all reasoning. We think, therefore, that
treaties stipulating for permanent rights, and general arrangements,
and professing to aim at perpetuity, and to deal with the case of war
as well as of peace, do not cease on the occurrence of war, but are, at
most, only suspended while it lasts; and unless they are waived by
the parties, or new and repugnant stipulations are made, they revive
in their operation at the return of peace."
SUSPENSION OF INTERCOURSE WITH THE ENEMY.
“No principle,” says Mr. Justice Story,“ of national or municipal
law is better settled than that all contracts with an enemy, made
during War, are utterly void. This principle has grown hoary un-
der the reverend respect of centuries, and cannot now be shaken
without uprooting the very foundations of national law."
No rule of law is in fact better established by the universal usage
of the community of States. This rule of interdiction in no degree
arises from the commerce being carried on by sea : the principles of
public policy and public law equally forbid commercial intercourse
by land; and when an enemy existed in the other part of the island
of Great Britain, such intercourse was deemed equally criminal in the
jurisprudence of our country.
When the belligerent maritime rights and the question of licences
come under consideration, we shall see with what strictness this rule
has been applied to cases in which supplies have been brought to a
British colony during its temporary subjection to the enemy, and to
cartel ships.
In the last war between Russia and England, it pleased the Crown
of England both to waive a great portion of her belligerent rights
respecting neutral States, and also, with respect to her own subjects,
to allow, with certain exceptions relating to Contraband of War
and Blockade, that her subjects might, during and notwithstanding
the hostilities with Russia, freely trade with all ports and places,
wheresoever situate, which were not in a state of blockade, save and
except that no British vessel should, under any circumstances what-
soever, either under or by virtue of this order or otherwise, be per-
mitted or empowered to enter or communicate with any port or place
which shall belong to or be in the possession or occupation of Her
Majesty's enemies.
Every State has a right to call home its subjects who are in a
foreign country, when their presence is deemed necessary by the Gov-
ernment for the defence of their country.
Every State has a right to forbid its subjects to serve the enemy
against their country, and to punish them in case of disobedience.
The same principle applies to prohibit all communication or corre-
spondence, and, as we have seen, all commerce, with the enemy. It
is simply a question of policy and expediency whether and with
what degree of vigour, the right shall be enforced. But all con-
tracts with the enemy are null and void, even the insurance of an
270
SUSPENSION OF INTERCOURSE.
271.
enemy's property is illegal, upon the ground of its being a species of
intercourse with the enemy; for the same reason bills of exchange
drawn by the subject of one belligerent upon the subject of the other
belligerent, are illegal and void. The remission of funds in money,
or bills, to subjects of the enemy, the purchase of bills, or the deposit
of funds in the enemy's country, are unlawful, because they tend to
improve the resources and strengthen the hands of the enemy. In
fine, every communication with the State, however circuitous, is
prohibited, unless it be sanctioned by the special authority of the
Government.
Phillimore, vol. 3, pp. 119-121 ; Brown, v. U. S., 8 Cranch, 136.
Punishment for communicating with the enemy.
It has been holden by the Law of England that if a man be ad-
herent to the King's enemies in his realm, that is, the subjects of
foreign Powers with whom the King is at open War, giving to them
aid and comfort in the realm or elsewhere, he is guilty of treason.
This must be proved by some overt act, as by giving them intelli-
gence, by sending them provisions, by selling them arms, by treach-
erously surrendering them a fortress, or the like.
In the case of Rex v. William Stone, which was tried in 1796, the
report is as follows:
The prisoner was tried at the bar of this Court on the 28th and
29th days of January in this term, upon an indictment for high
treason, on two branches of the 25 Ed. III. st. 5, c. 2., for compassing
the death of the King, and for adhering to his enemies. The overt
acts were the same in each count, being eleven in number; but that
to which the evidence chiefly applied, was the conspiring with John
Hurford Stone, William Jackson, and others unknown, to collect
intelligence within this kingdom and the kingdom of Ireland of the
disposition of the King's subjects in case of an invasion of Great
Britain or Ireland, and to communicate such intelligence to the
persons exercising the powers of Government in France, enemies of
our lord the King, for their aid, assistance, direction, and instruc-
tion, in their conduct and prosecution of the war, &c.
In the case of Dr. Hensey, tried in 1758,2
Lord Mansfield laid it down as a point which was never doubted,
“That this offence, of sending intelligence to the enemy of the desti-
nations and designs of this kingdom and Government, in order to
assist them in their operations against us, or in their defence of them-
selves, is high treason, even although such a correspondence should be
intercepted, without ever coming to the enemy's hands. And so was
the resolution of all the Judges in Gregg's case."
16 Durnford & East, 527.
2 Rer. 1. Dr. Hensey, 1 Burrow's Rep. 650.
272
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The 11 & 12 William III, c. 7., and 18 George II. c. 30., relate to
piracy committed under an enemy's commission.
Upon an indictment on the 18 George II. c. 30., a question was
made whether adhering to the king's enemies, by hostilely cruising
in their ships, could be tried as piracy under the usual commission
granted by virtue of the statute 28 Henry VIII, c. 15. The 18 George
II. recites that doubts had arisen whether subjects entering into the
service of the King's enemies, on board privateers and other ships,
having commissions from France and Spain, and having by such
adherence been guilty of high treason, could be deemed guilty of
felony within the intent of the 11 & 12 William III. c. 7., and be
triable by the Court of Admiralty appointed by virtue of the said
Act; and then enacts that persons who shall commit hostilities upon
the sea, &c., against His Majesty's subjects by virtue or under colour
of any commission from any of His Majesty's enemies, or shall be
any otherwise adherent to His Majesty's enemies upon the sea, &c.,
may be tried as pirates, felons, or robbers, in the said Court of Ad-
miralty, in the same manner as persons guilty of piracy, felony, and
robbery, are by the said Act directed to be tried; but it does not say
that they shall be deemed pirates, &c., as in the 11 & 12 William III.
c. 7. The prisoner having been convicted, the question was reserved
for consideration of the judges; and it was agreed by eight who were
present, that the prisoner had been well tried under the commission;
for that taking the 11 & 12 William III. and 18 George II. together,
and the doubt raised in the latter, and also its enactment that in the
instances therein mentioned, and also in case of any other adhering
to the King's enemies, the parties might be tried as pirates by the
Court of Admiralty according to that statute, it was substantially
declaring that they should be deemed pirates; and that it was a just
construction in their favour to allow them to be tried as such by a
jury.
The offence of serving foreign States is restrained and punished
by statute. The 59 George III. c. 69., generally known by the name
of the “ Foreign Enlistment Act,” has been replaced by 33 & 34
Vict. c. 90.; this subject, already adverted to in previous parts of
this work, will be more fully considered in a subsequent chapter.
Notwithstanding the provisions of 59 George III., it was ruled by
the judges that a British subject, who, in the service of a foreign
State at peace with Great Britain, captures a British vessel which is
lawfully condemned as prize for breaking blockade, is not liable to
an action at the suit of the owner of the vessel.2
During the last War between England and Russia, a statute was
passed (12th of August, 1854), “to render any dealing with secur-
1
1 Evans Case, 1 East, 798.
2 Dobree & Others +. Napier & Another, 2 Bingham (N. C.) Rep. 781.
SUSPENSION OF INTERCOURSE.
273
ities issued during the present War between Russia and England by
the Russian Government a misdemeanor.
The statute recited" that it is expedient to prevent as much as pos-
sible the Russian Government from raising funds for the purpose
of prosecuting the War which it at present carries on against this
country,” and enacted as follows:
“I. If during the continuance of hostilities between Her Majesty
and the Emperor of Russia, any person within Her Majesty's do-
minions, or any British subject in any foreign country, shall wilfully
or knowingly take, acquire, become possessed of, or interested in any
stocks, funds, scrip, bonds, debentures, or securities for money which,
since the 29th day of March, 1854, have or hath been, or which, dur-
ing the continuance of hostilities as aforesaid, shall be, created, en-
tered into, or secured by or in the name of the Government of Russia,
or any person or persons on its behalf, every person so taking, acquir-
ing, becoming possessed of, or interested in any such stocks, funds,
scrip, bonds, or debentures as aforesaid, shall be guilty of a misde-
meanor, and in Scotland of an offence punishable with fine or im-
prisonment: Provided always, that the provisions of this Act shall
not extend to or include the case of any such person or subject claim-
ing an interest in the estate or effects of any deceased person, or the
case of any such person or subject taking the estate or effects of his
debtor in execution, or the case of any such person or subject claim-
ing in any country to be interested under any bankruptcy, insolvency,
sequestration, cessio bonorum,. or disposition of property in trust
for creditors, but that in every such case the British subject may take
and receive any stocks, funds, scrip, bond, or debentures, or any
share, legacy, dividend, debt, or sum of money due or belonging to
him, which may arise from or be produced by the sale or proceeds
of any such stocks, funds, scrip, bonds, or debentures as aforesaid;
and provided also, that nothing herein contained shall be construed
to include the Government notes which are used as a circulating
medium in the Russian dominions.
“II. All offenses against this Act committed beyond the limits of
the United Kingdom, may be inquired of, tried, determined, and
dealt with as if the same had been respectively committed within the
body of the county of Middlesex.
‘III. Nothing herein contained shall have the effect of reducing to
a misdemeanor any such offence which if this Act had not been passed
would amount to the crime of high treason, or be deemed in any
manner to alter or affect the law relating to high treason; but no
person indicted for a misdemeanor under this Act shall be entitled
to an acquittal on the ground that the acts proved against him
amount in law to the crime of high treason."
274
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Prohibitory laws, rhether they be civil or criminal, may follow
the subject wherever he goes.
According to the law of England, treasons committed by subjects
of the British Crown, out of the realm, may be tried in the Queen's
Bench; and, by the law of the same country, if the Crown send a
writ to any subject' when abroad, commanding his return, and the
subject disobey, it is a high contempt of the Royal Prerogative, for
which the offender's lands may be seized till he return; and then he
is liable to fine and imprisonment. And this doctrine is not one
peculiar to England, but appertains to the general public jurispru-
dence of all civilian States.
.
Phillimore, vol. III, pp. 121–126.
Duties and rights of an ally.
There is little, if any, difference in the effect of War upon allies
and upon belligerents; for allies, to adopt the accurate expression of
Bynkershoek, form one State (unam constituunt civitatem) with the
confederate belligerent.
This principle, duly considered and applied, furnishes a solution
for all questions relating to the position, the duties, and the rights
of an ally.
Thus, for instance, the doctrine that all commerce and communi-
cation is interdicted with the enemy is enforced, not only against the
subjects of the belligerent, but also against those of the ally, upon
the supposition that the rule was founded on a strong and universal
principle which allied States in War had a right to notice and apply
mutually to each other's subjects.
So the subject who returns to the allies of his Sovereign is en-
titled to the Rights of Postliminium, because he is considered as
having returned to his own country.
So a prize may be lawfully condemned in the port of, or by the
tribunal of an ally, though if the port were neutral, this would be
perhaps unlawful, with reference to the place of the vessel, and
certainly unlawful with respect to the tribunal, if that were neutral.
Phillimore, vol. III, pp. 126–127; the Hoop, 1 C. Rob. 217; Hughes v.
Cornelius, Carthew's Rep. 32; The Christopher, 2 C. Rob. 209;
Oddy v. Bovill, 2 East, 473; The Henricle and Maria, 4 C. Rob. 43;
The Cornet, 5 ib, 285; La Purissima Conception, 6 ib. 45; The Kier
lighett, 3 C. Rob. 99; The Cosmopolite, 3 ib. 333.
One of the immediate and important consequences of the declara-
tion of war is the absolute interruption and interdiction of all com-
mercial correspondence, intercourse, and dealing between the subjects
of the two countries. The idea that any commercial intercourse or
pacific dealing can lawfully subsist between the people of the powers
at war, except under the clear and express sanction of the govern-
SUSPENSION OF INTERCOURSE.
275
ment, and without a special license, is utterly inconsistent with the
new class of duties growing out of a state of war. The interdiction
flows necessarily from the principle already stated, that a state of
war puts all the members of the two nations respectively in hos-
tility to each other; and to suffer individuals to carry on a friendly
or commercial intercourse, while the two governments were at war,
would be placing the act of government and the acts of individuals
in contradiction to each other. It would counteract the operations
of war, and throw obstacles in the way of the public efforts, and lead
to disorder, imbecility, and treason. Trading supposes the exist-
ence of civil contracts and relations, and a reference to courts of jus-
tice; and it is, therefore, necessarily contradictory to a state of war.
It affords aid to the enemy in an effectual manner, by enabling the
merchants of the enemy's country to support their government
and it facilitates the means of conveying intelligence, and carrying
on a traitorous correspondence with the enemy. These considerations
apply with peculiar force to maritime states, where the prin-
cipal object is to destroy the marine and commerce of the enemy, in
order to force them to peace. It is a well settled doctrine in the
English courts, and with the English jurists, that there cannot exist,
at the same time, a war for arms and a peace for commerce. The
war puts an end at once to all dealing and all communication with
each other, and places every individual of the respective governments
as well as the governments themselves, in a state of hostility.
This is equally the doctrine of all the authoritative writers on the
law of nations, and of the maritime ordinances of all the great powers
of Europe. It is equally the received law of this country, and was
so decided frequently by the Congress of the United States during
the Revolutionary war, and again by the Supreme Court of the
United States during the course of the last war; and it is difficult to
conceive of a point of doctrine more deeply or extensively rooted in
the general maritime law of Europe, and in the universal and im-
memorial usage of the whole community of the civilized world.
Kent, vol. 1, pp. 78, 79.
Prohibition extends to ally.
It is equally illegal for an ally of one of the belligerents, and who
carries on the war conjointly, to have any commerce with the enemy.
A single belligerent may grant licenses to trade with the enemy, and
dilute and weaken his own rights at pleasure, but it is otherwise
when allied nations are pursuing a common cause. The community
of interest and object and action creates a mutual duty not to preju-
dice that joint interest; and it is a declared principle of the law of
nations, founded on very clear and just grounds, that one of the
belligerents may seize and inflict the penalty of forfeiture on the
276
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
property of a subject of a co-ally, engaged in a trade with the com-
mon enemy, and thereby affording him aid and comfort whilst the
other ally was carrying on a severe and vigorous warfare. It would
be contrary to the implied contract in every such warlike confederacy,
that neither of the belligerents, without the other's consent, shall do
anything to defeat the common object.
Kent, vol. 1, pp. 83, 84.
One of the immediate and important consequences of this principle,
which has been fully confirmed by the usages of modern warfare,
and by the decisions of the judicial tribunals of Europe and the
United States, is, that a declaration, or recognition of war, effects
an absolute interruption and interdiction of all commercial inter-
course and dealings between the subjects of the two countries. The
idea, says Kent, that any commercial intercourse, or pacific dealing,
can lawfully subsist between the people of the powers at war, except
under the clear and express sanction of the government, and without
a special license, is utterly inconsistent with the duties growing out
of a state of war. It is a well settled doctrine, in the English courts
and with the English jurists, that there cannot exist, at the same time,
a war of arms and a peace of commerce. The war puts an end at
once to all dealings and all communications with each other. This
is equally the doctrine of all the authoritative writers on the law of
nations, and of the maritime ordinances of all the great powers of
Europe. It was frequently so decided by the congress of the United
States, during the revolutionary war, and, again, by the supreme court
of the United States during the war of 1812. This doctrine renders
null and void all contracts with the enemy during the war; it makes
illegal the insurance of enemy's property, prohibits the drawing of
bills of exchange, by an alien enemy on a subject of the adverse gov-
ernment, the purchase of bills on the enemy's country, or the remis-
sion and deposit of funds there, and the remission of money or bills
to subjects of the enemy. All endeavors at trade with the enemy, by
the intervention of third persons, or by partnerships, are equally for-
bidden, and no artifice can legalize any trade, communication, or con-
tract of whatsoever character, without the express permission of the
government. The subjects of the belligerent states cannot commence
or carry on any correspondence or business together, and all commer-
cial partnership, existing between the subjects of the two parties prior
to the war, are dissolved by the mere force and act of the war itself;
though other contracts, existing prior to the war, are not extinguished,
but the remedy is only suspended, and this from the inability of an
alien enemy to sue, or to sustain, in the language of the civilians, a
persona standi in judicio. (Kent, Com. on Am. Law, vol. 1, pp. 66,
68; Wheaton, Elem. Int. Law, pt. 4, ch. 1, $$13, 15; The Indian Chief,
SUSPENSION OF INTERCOURSE.
277
3 Rob. Rep., p. 22; The Pieter, 4 Rob. Rep., p. 49; The Franklin,
6 Rob. Rep., p. 127; The Joseph, 8 Cranch. Rep., pp. 451, 455; Chitty,
Law of Nations, pp. 2, 3; Manning, Law of Nations, pp. 122, 123;
Wildman, Int. Law, vol. 2, pp. 8–10; Heffter, Droit International,
$$122, 128; The Hoop, 1 Rob. Rep., p. 196; The Rapid, 8 Cranch.
Rep., p. 155.)
Halleck, pp. 357–358.
Subjects of an ally.
It may be stated, as a general proposition, that the property of a
subject found engaged in trade or intercourse with the ports, terri-
tories, or subjects of a public enemy, is liable to confiscation. This
rule is not founded on any peculiar criminality in the intentions of
the party, or on any direct loss or injury resulting to the state, but is
the necessary consequence of a state of war, which places the citizens
or subjects of the belligerent states in hostility to each other, and pro-
hibits all intercourse between them. The protection of the interests
and welfare of the state, makes the application of this rule especially
necessary to the merchant and trader, who, under the temptations of
an unlimited intercourse with the enemy, by artifice or fraud, or from
motives of cupidity, might be led to sacrifice those interests. The
same rule is applicable to the subjects of an ally. Where two or
more states are allied in a war, the relations of the subjects of the
ally toward the common enemy, are precisely the same as those of the
subjects of the principal belligerent. In this respect, there is no dis-
tinction between the two; and if the courts of their own country do
not enforce the rights and duties of war, those of the principal or
co-belligerent may do so, for the tribunals of all have an equal right
to enforce the laws of war, and to punish any infractions, whether
committed by the subjects of their own government, or of that of an
ally. As neither of the allies in a common war can relax in favor of
its own subjects, without the consent of its co-belligerent, the general
rule which prohibits all commercial intercourse with the common
enemy, it is held that the subjects of one state cannot plead in the
prize courts of its ally, the permission of their own sovereign to en-
gage in such prohibited trade, and that such permission will not ex-
empt from condemnation, the property so employed. This rule seems
to be founded on good and substantial reasons. We quote the remarks
of Sir William Scott on this point. “It is of no importance," he says,
“to other nations, how much a single belligerent chooses to weaken
and dilute his own rights. But it is otherwise, when allied nations are
pursuing a common cause against a common enemy. Between them,
it must be taken as an implied, if not an express contract, that one
state shall not do anything to defeat the general object. If one state
permits its subjects to carry on an interrupted trade with the enemy,
278
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the consequence may be that it will supply that aid and comfort to the
enemy, especially if it is an enemy depending very materially on the
resources of foreign commerce, which may be very injurious to the
prosecution of the common cause, and the interests of its ally.” He
therefore concludes, that it is not enough to say that one state has
given its permission, but that it should also appear that the trade has
the allowance of the confederate state, or that it can, in no manner,
interfere with the common operations. (Manning, Law of Nations,
p. 122; Chitty, Law of Nations, pp. 276, 277; Bynkershoek, Quaest.
Jur. Pub., lib. 1, caps. 9 and 15; Wheaton, Elem. Int. Law. pt. 4, ch. 1.
88 13, 14; Phillimore, On Int. Law, vol. 3, $8 69 et seq.; Heffter, Droit
International, § 123; Duer, On Insurance, vol. 1, pp. 555, 579; The
Neptunus, 6 Rob. Rep., p. 406; The Noyade, 4 Rob. Rep., p. 251; The
Eenigheid, 1 Rob. Rep., p. 210; The Hoop, Rob. Rep., p. 200; The
Jonge Pieter, 4 Rob. Rep., p. 79; The Julia, 1 Gallis. Rep., pp. 601-603;
The Rapid, 8 Cranch Rep., p. 155.)
Halleck, pp. 496–498.
It follows, however, clearly from the notion of war as an interrup-
tion of peaceful intercourse, that all commerce between the subjects
of the belligerents is unlawful, unless expressly licensed, or necessary
for the war itself. Hence partnerships with an enemy are dissolved,
and all power of prosecuting claims through the courts of the enemy
is suspended during the war; all commercial transactions with the
subjects or in the territory of the enemy, of whatever kind, except
ransom contracts (5 150), whether direct or indirect (as through an
agent or partner who is a neutral), become illegal and void. In the
case where the business is conducted by a neutral partner, his share in
the concern alone is protected, while that of the belligerent's subject is,
if seized, liable in his own country to confiscation.
Woolsey, pp. 193, 194.
To say that war puts an end to all nonhostile relations between
the subjects of enemy states, and between the subjects of one and the
government of the other, is only to mention one of the modes of oper-
ation of the principle, which lies at the root of the laws of war,
that the subjects of enemy states are enemies. The rule is thus one
which must hold in strict law in so far as no exception has been es-
tablished by usage. Logically it implies the cessation of existing
intercourse, and therefore a right on the part of a state to expel or
otherwise treat as enemies the subjects of an enemy state found
within its territory; the suspension or extinction of existing con-
tracts according to their nature, among extinguished contracts being
partnerships, since it is impossible for partners to take up their joint
business on the conclusion of war at precisely the point where it was
SUSPENSION OF INTERCOURSE.
279
abandoned at its commencement; a disability on the part of the sub-
jects of a belligerent to sue or be sued in the courts of the other;
and finally, a prohibition of fresh trading or other intercourse
and of every species of private contract. Of late years it is seldom
that a state has exposed itself, together with its enemy, to the incon-
veniences flowing from a rigid maintenance of the rule of law; but
the mitigations of it which have taken place have generally been
either too distinctly dictated by the self-interests of the moment
alone, or have been too little supported by usage, to constitute es-
tablished exceptions.
Hall, p. 405.
According to Anglo-American doctrine, on the commencement of
hostilities between two States, all contracts including partnership,
but excepting contracts of necessity, such as ransom bills, and con-
tracts under special license, concluded between their subjects before
the war become extinct or suspended; no subject of one belligerent can
sue or be sued in the Courts of the other; all peaceful intercourse be-
tween them, especially trading, is prohibited. It may be said, how-
ever, that these rules are scarcely embodied in the substance of public
international law, but are rather the outcome of municipal law. No
doubt, several States have prohibited intercourse of this kind on the
part of their respective subjects, but such action has not been universal
or uniform. Of course, such intercourse with the enemy as directly
arises from the use of ambulance appliances, and other articles pro-
tected by the Geneva Convention, is permissible.
On the military side great advance has been made; but as to the
question of intercourse, the old dogmas are still maintained. These
matters are decided by Courts who conclude as to the legality or other-
wise mainly from precedent, and have scarcely manifested any ten-
dency to keep pace with progressive public opinion. The influence of
Christianity, and of the rapid advance of civilization, at all events in
its commercial and economic aspects, has been great. Grotius ad-
mitted the just strictness of the theory, as arising out of the jus natu-
rale and the jus gentium, but insisted on the necessity to modify it by
the principles of divine law. War became more regularized with the
institution of standing armies, and some differentiation began to be
made between the military and the civil aspects of nations, between
the operations of war, and the necessities and claims of commerce.
Bynkershoek says that sometimes commerce may be permitted gener-
ally, or confined to certain branches; that a state of war and a state of
peace may be maintained at the same time. “Pro parte sic bellum, pro
parte pax erit inter subditos utriusque principis."? It is, of course,
1 Bynkershoek, c. iii.
280
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
implied here that the war is not conducted with extreme severity. The
difficulty is, however, where the line is to be drawn. In Bynkershoek's
time such practice may have been more possible than it is now; in our
time, considering the extent of military and naval development, the
rapidity of communication, and the extension of cosmopolitan inter-
course, the twofold relationships, deemed' by him feasible and permis-
sible, could not obtain at one and the same time.
In the meantime great liberty had been claimed in certain countries.
In the 17th century, Amsterdam merchants claimed the right, as
agents, to continue trade with the enemies of their country. In 1675
trade continued between the United Provinces and Sweden, though
the two nations were at war. The Emperor of the Holy Roman Em-
pire issued a decree against commerce, but it only affected contraband.
In Vattel, the new practice is shown to predominate over the old
theory. The formula of courir sus still appeared in declarations of
war, but its rigour was becoming somewhat diminished and its extent
limited. In 1672, in the British declaration of war against Spain, the
formula was omitted. In the treaty of 1785 between the United States
and Prussia concluded for ten years, there was a stipulation that there
should be no interruption of their commerce or navigation in time of
war. And before this date, about the middle of the eighteenth cen-
tury, Bonnot de Mably urged the discontinuance of all interdiction
on the grounds that such conduct (characterized by him "un reste
de notre ancienne barbarie”) may not only be injurious to neutrals,
but is directly detrimental to the belligerents themselves. But sub-
sequent practice has been of a contrary nature. In America, during
the Civil War, a special Act was passed forbidding subjects of the
United States to hold any correspondence with the Confederates. At
the time of the Franco-German War, the French Government im-
posed an absolute prohibition on all contracts, whether by individuals
or trading corporations, on insurance, on all commercial transactions,
and even on direct correspondence, postal or telegraphic. “Le prin-
cipe absolu pour tous contrats, tels que associations, assurances,
négociations d'effets de commerce, même pour la correspondance di-
recte, postale ou télégraphique, sous la sanction de la saisie des ob-
jects des conventions, a été édicté aussi dans une circulaire du ministre
de la marine de France en 1870." 2
In England and America similar prohibition obtains, and in
nearly all countries there is now formal legislation on the subject,
so that international jurists must submit to the dispositions of mu-
nicipal law, which is considered supreme in this respect :-“Un gou-
vernement belligérant a sans nul doute, dans ses rapports avec ses
propres sujets, le droit de sanctionner par la confiscation ses prohibi-
1“ Droit Public de l'Europe fondé sur les Traités," vol. II, p. 310.
'F. Despagnet, " Cours de Droit International Public," p. 540.
SUSPENSION OF INTERCOURSE.
281
1
tions de trafic avec l'ennemi. Again, according to the French.view,
all acts contrary to prohibition are null, and have no legal validity
whatever, even after the conclusion of peace; “ Ce qu'il importe
de remarquer, c'est que cette nullité est définitive, et persiste après
la paix. On ne pourrait pas, postérieurement à cette époque, fonder
une demande en justice sur une opération commerciale accomplie au
temps des hostilités."2 German opinion is similarly strong against
the continuance of intercourse. Thus, Heffter 3 says, to tolerate it
would be to place in deliberate antagonism the action of individual
subjects and that of their governments; and in every case the inter-
osts of individuals must be subservient to those of the State. Hence
all contractual proceedings with or on behalf of the enemy will be
illegal: “... so darf es doch nicht in Widerspruch mit den Interes-
sen der Staaten geübt werden, unter deren Schutze es steht ... Es
liegt daher in der Natur der Sache, dass ein völlig freier, unüberwach-
ter Handelsverkehr zwischen den Unterthanen der streitenden Theile
nicht zugelassen werden kann, vielmehr jeder kriegführende Staat
zur Beschränkung derselben Massregeln zu ergreifen befugt ist.”
Phillipson, pp. 48-53.
Contrasted opinions as to nonintercourse.
Two contrasted opinions are found as to non-intercourse. The first
is that the doctrine is really obsolete, and that special prohibitions are
necessary for the cessation of commercial intercourse. There is not
necessarily any presumption as to interdiction. Of this view are
Pinheiro-Ferreira, Bluntschli, Heffter, Lueder, Rivier. Courts of law
may, of course, on this view, pronounce a certain contract illegal, when
its effect is to assist the enemy, as was the case of the banker Güterbock
in the French war loan, whose transaction was pronounced by the
Prussian Criminal Court in 1871 not only illegal but treasonable; and
they may also decline to entertain any action in respect of such con-
tract, even if entered into before the war. The second opinion is, that
the doctrine of non-intercourse continues in force, but that specific
licences from the government are necessary to legalize any desired
commercial relationships. This is the view taken by British and
American Courts, and by such writers as Geffcken, Calvo, and Byn-
kershoek, the pronouncement of the latter being clear and forcible:
“Quamvis autem nulla specialis sit commerciorum prohibitio, ipso
tamen jure belli commercia esse vetita ipsae declarationes bellorum
satis declarant." 4 The complex nature of modern commerce and its
cosmopolitan ramifications no doubt constitute a danger to bellig-
erents, who have a right to protect themselves from undue injury
1 A. Desjardins, “Traité de Droit Commercial Maritime," vol. 1, p. 38.
2 A. Pillet, “ Les Lois Actuelles de la Guerre," p. 76.
3“ Das Europäische Völkerrecht der Gegenwart,". sec. 23, pp. 220, 221.
4 Vol. 1, c. iii.
110678419-19
282
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
thereby. To tolerate commerce would be to put into conflict the inter-
ests of the government with those of its subjects; but the State is
supreme, and an obligation is necessarily imposed, explicitly or im-
plicitly, on the individual subjects to subordinate their interests, if
necessary, and promote those of the Sovereign to whom they owe
allegiance. It is the abuse of the principle of presumed interdiction,
not the principle itself, that is to be condemned. “ Ces critiques visent
l'abus de l'interdiction plutôt que l'emploi prudent, opportun, néces-
saire de cette mesure.
Phillipson, pp. 53, 54.
1
On the extent of the intercourse permitted depends the validity of
any distinct contracts relating thereto. Hence all contracts, except
cases of commercia belli already mentioned, entered into after the out-
break of hostilities are void and incapable of enforcement at any time,
and probably also such contracts as have been made in contemplation
of war. Those not so made, and existing before war began, are not
absolutely extinguished, but are held in abeyance until the conclusion
of peace, when they ipso facto revive.
Phillipson, p. 70.
In 1871, the Berlin banker, Herr Güterbock, was sentenced to im-
prisonment for subscribing to the French War Loan. As Professor
Bonfils remarks—“The continuance of commercial relations between
citizens would give the situation a doubtful and equivocal character.
They would contribute directly or indirectly to the enemy's means of
defence, increase or renew his resources, facilitate the prolongation of
the struggle and render it therefore more disastrous and less humane."
And the French jurist's remarks are echoed by M. Geffcken, who adds
that to allow intercourse between the subjects of warring States would
put the actions of individuals and of their rulers in opposition.
Spaight, pp. 26, 27; Bonfils, $ 1060.
Exception.
The rule prohibiting commerce with enemy subjects is also relaxed
in the case of supplies which are required by an invading army and
which it finds it convenient to purchase. from the local inhabitants.
Such transactions require no act of State to legalise them, the author-
ity of an army commander being sufficient. Generally the mitigations
of the broad rule of law have been based on the self-interest of bellig-
erents and do not amount to a counterusage permitting commerce.
High authority is needed to prove that any commercial transaction
with an enemy subject is not bad in se.
Spaight, pp. 27, 28.
1 Pradier-Foderé, vol. VI, p. 681.
SUSPENSION OF INTERCOURSE.
283
Divergence of views.
Following Bynkershoek all British and American writers and cases,
and also some French [For instance, Pillet, p. 74, and Mérignhac,
p. 57] and German [For instance, Geffcken in his note 4 to Heffter,
p. 265] writers assert the existence of a rule of International Law
that all intercourse, and especially trading, is ipso facto by the out-
break of war prohibited between the subjects of the belligerents,
unless it is permitted under the customs of war, as, for instance, ran-
som bills, or is allowed under special licenses, and that all contracts
concluded between the subjects of the belligerents before the outbreak
of war become extinct or suspended. On the other hand, most Ger-
man, French, and Italian writers deny the existence of such a rule,
but assert the existence of another according to which belligerents
are empowered to prohibit by special orders all trade between their
own and enemy subjects.
These assertions are remnants of the time when the distinction
between International and Municipal Law was not, or not clearly,
drawn. International Law, being a law for the conduct of States
only and exclusively, has nothing to do directly with the conduct of
private individuals, and both assertions are, therefore, nowadays
untenable. Their place must be taken by the statement that, States
being sovereign and the outbreak of war bringing the peaceful rela-
tions between belligerents to an end, it is within the competence of
every State to enact by its Municipal Law such rules as it pleases
concerning intercourse, and especially trading, between its own and
enemy subjects. And if we look at the Municipal Laws of the sev-
eral countries, we find that they have to be divided into two groups.
To the one group belong those States—such as Austria-Hungary,
Germany, Holland, and Italy–whose Governments are empowered
by their Municipal Laws to prohibit by special order all trading with
enemy subjects at the outbreak of war. In these countries trade with
enemy subjects is permitted to continue after the outbreak of war
unless special prohibitive orders are issued. To the other group
belong those States—such as Great Britain, the United States of
America, and, unless desuetudo has made an alteration, France-
whose Municipal Laws declare trade and intercourse with enemy
subjects ipso facto by the outbreak of war prohibited, but empowers
the Governments to allow by special licenses all or certain kinds of
such trade.
Oppenheim, vol. 2, pp. 135, 136.
Exceptions.
Although the outbreak of war between States as a rule brings non-
hostile'intercourse to an end, necessity of circumstances, convenience,
humanity, and other factors call, or may call, some kinds of non;
284
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
>
hostile relations of belligerents into existence. And it is a univer-
sally recognised principle of International Law that, where such
relations arise, belligerents must carry them out in good faith. Fides
etiam hosti servanda is a rule which was adhered to in antiquity,
when no International Law in the modern sense of the term existed.
But it had then a religious and moral sanction only. Since in modern
times war is not a condition of anarchy and lawlessness between bel-
ligerents, but a contention in many respects regulated, restricted, and
modified by law, it is obvious that, where non-hostile relations be-
tween belligerents occur, they are protected by law. Fides etiam
hosti servanda is, therefore, a principle which nowadays enjoys as
well a legal as a religious and moral sanction.
As through the outbreak of war all diplomatic intercourse and
other non-hostile relations come to an end, it is obvious that non-
hostile relations between belligerents must originate either from
special rules of International Law or from special agreements between
the belligerents.
Oppenheim, vol. 2, pp. 273, 274.
Special agreements of belligerents.
Non-hostile relations originating from special agreements of bel-
ligerents, so-called commercia belli, may either be concluded in time
of peace for the purpose of creating certain non-hostile relations
between the parties in case war breaks out, or they may be concluded
during the actual time of war. Such non-hostile relations are cre-
ated through passports, safe-conducts, safeguards, flags of truce, car-
tels, capitulations, and armistices. Non-hostile relations can also be
created by peace negotiations.
Oppenheim, vol. 2, p. 274.
The questions which have been classed as those of non-intercourse
concern the legal relations of individuals belonging respectively to
the different belligerent states. Can they contract with one another
during the war? And does the outbreak of war rescind contracts
then subsisting between them, or merely suspend the remedy on such
contracts, or has it no effect at all on them? Here we have to do with
the enemy relation in which, as the extreme outcome of the principle
of solidarity, mediaeval dogma placed the subjects of warring princes
towards one another; and it might be expected that here we should
find, a fortiori, whatever mitigation modern ideas have introduced
into the relation between individuals and the enemy state. But it is
here that the ancient dogmas most stubbornly maintain their ground,
a circumstance for which three causes may be assigned. First, while
the propriety of any given military action is discussed before the bar
of public opinion, and the wisdom of exercising a right of confisca-
tion is judged by the sovereign who is to profit by it, the rules of
SUSPENSION OF INTERCOURSE.
285
non-intercourse have to be judged by courts, which proceed on
grounds not of propriety or of wisdom but of law, and incline
towards precedent and not towards innovation. Secondly, since
there are dealings between individuals on the opposite sides which
it would not be reasonable to allow in war, it might 'well be thought
better to let the matter stand on the footing of a prohibition of
intercourse tempered by licenses than to introduce a general free-
dom of intercourse subject to exceptions sometimes disputable.
Thirdly, since there is no bar but that of public opinion before which
the propriety of military procedure can be brought, it is difficult
to maintain a distinction with regard to it between opinion and law.
There is little meaning in saying of a particular measure of war that
it is condemned by the general conscience of mankind, but that it
is not yet contrary to international law. If it is so widely condemned
it will not be commonly practised, while, if it is occasionally prac-
tised in spite of the general condemnation, the many writers who
magnify military necessity will refer the permission which they
accord to it rather to occasional necessity than to law. But the dis-
tinction between opinion and law is always present to courts of jus-
tice, and tends to hold them back from admitting a change in the law.
Westlake, vol. 2, pp. 38, 39.
The doctrine of non-intercourse, stated broadly, is that the right
of action by enemy subjects on existing contracts is suspended, that
commercial intercourse with enemy subjects is prohibited, and that
as a consequence no new contracts can lawfully be made between the
subjects of mutually enemy states. except in the cases, such as that
of ransom bills, known as commercia belli. This is not incompatible
with immunity for enemy subjects from the confiscation of their
property and rights, indeed the doctrine that the enemy subject's
right of action on contracts existing before the war is not abrogated
but only suspended can only take effect so far as his rights under
such contracts have not been confiscated, and therefore in the doctrine
of non-intercourse as here stated we are dealing with a stage in
which the ancient principles have already been modified, at least
in practice. But since the disuse of confiscation has been accom-
panied by a growing disuse of the attribution of the enemy charac-
ter to individuals, which attribution was equally the historical base
of the doctrine of non-intercourse, we shall not be surprised to find
that doubt about the latter rule has also begun to creep in. That it
has not done so with more strength seems to have been due to the
circumstance that the question as to the rights involved is usually
one for courts of law, the conservative tendency of which has been
pointed out.
There are in fact two contrasted opinions. One is that the non-
intercourse doctrine is now obselete, that there is no general objection
286
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
to contracting with enemy subjects, and that the remedies of such
subjects on their contracts are not suspended, except when and so far
as a government may deem itself obliged by the circumstances of the
war expressly to prohibit intercourse with them. This opinion of
course leaves it open to the courts of law to pronounce a contract
illegal which in their judgment amounts to a participation by a sub-
ject in a war against his country, as the Prussian criminal court in
1871 held the participation of the Berlin banker Güterbock in the
French war loan known as the Morgan loan to be not only illegal
but treasonable. And on the same principle a court may refuse to
entertain an action on a contract made for the purposes of a war
against the country, notwithstanding that such contract was legal
when and where made. But the opinion that there is no general
objection to contracting with enemy subjects, if adopted by the
British courts, would leave their government less able than some
may be to protect itself by special prohibitions, for the British crown
has no power to issue such, so that the assistance of Parliament
would be necessary where the contract did not amount to a participa-
tion in the war but was objected to on the ground of expediency.
The other opinion, which is that of the courts in England and the
United States, is that the doctrine of non-intercourse as stated at the
opening of this section continues in force, and that it is relaxations
of it which require to be expressly made by governments. For such
relaxations the British crown is not so helpless as it is for prohibi-
tions, since it can grant licenses for oversea trade in time of war, which
operate as instructions to its cruisers not to interfere with the trade
so licensed. Such instructions directly bind the prize jurisdiction,
and the British courts of general jurisdiction recognize contracts
made in the course of the licensed trade as lawful. As historical ex-
amples of licenses it may be mentioned that during the Crimean war
both Great Britain and France, the former by an order in council
of 15 April 1854, permitted their subjects to trade with non-block-
aded Russian ports, if in neutral vessels and not in articles of con-
traband, and Russia, by a declaration of 9 April 1854, allowed
goods belonging to British and French subjects to be imported in
neutral vessels; also that during their war with China in 1860 both
Great Britain and France expressly permitted their subjects to con-
tinue their trade with that empire.
Westlake, vol. 2, pp. 48–50; Anthon v. Fisher, Douglas, 650; Ware v.
Jones, 61 Alabama, 288, Scott, 517; Flindt v. Scott, 5 Taunton,
674, Scott, 526.
2
Shareholders and directors of corporations.
[The] prohibition of commercial intercourse with enemy subjects
will during the war prevent the shareholders [of British corpora-
tions] from exercising voting powers, while the enemy directors, who
SUSPENSION OF INTERCOURSE.
287
can not continue to fill their places while their duties would be in
suspense, must be regarded as deprived of that character from the
outbreak.
Westlake, vol. 2, pp. 53, 54.
Effect of Hague Regulation XXIII (h).
The doctrine of non-intercourse during war has certainly not been
affected, as a branch of English law by the Art. XXIII (h) intro-
duced in 1907 into the Hague Code of the Laws of War. But it will
be well here to refer to that article and the comments on it, which
will be found in this volume at pp. 79, 83.
Westlake, vol. 2, p. 55.
var.
Directly, this case [Janson v. Driefontein Consolidated Mines,
Ltd., 1902; A. C. 484] merely decides that the legal effects of war on
commercial relations will accrue only as from the time when the war
actually commences. But beyond this, the judgments re-state and
affirm, with all the authority that attaches to the decisions of a Court
of final appeal, the general rule of non-intercourse; and more especi-
ally, its effects on contracts or other transactions subsisting between
subjects of the respective belligerents at the time of the outbreak of
The rule of non-intercourse came under consideration in the
same war in the case of The Mashona (10 Cape Times, L. R. 450),
where, amongst other things, it was laid down that one of the imme-
diate consequences of the outbreak of hostilities was the interdiction
of all commercial intercourse between the subjects of the States at
war without the license of their respective governments, and that this
prohibition applied to all persons domiciled within the belligerent
States. In other words, all commercial intercourse without license
between persons“ divided by the line of war” is prohibited.
The more important applications of this rule in English law are
shortly these :-(i.) Contracts or other transactions duly entered into
before the war between persons who, whatever their nationality, are
divided by the line of war, are, in general, merely suspended during
the war, as regards the right to performance and the right of suit.
Nevertheless, even such transactions will be abrogated (1) if they
inure to the aid of the enemy; or (2) if they cannot be carried out
without involving some dealing with the enemy; or (3) if they are
in their nature incapable of suspension. (ii.) On the other hand,
transactions which are entered into after the commencement of the
war, and between persons divided by the line of war-whether in the
nature of trading ventures proper, or contracts of any other kind-
are in general illegal and void; whilst the same invalidity will attach
to contracts which, even though not made with alien enemies, are yet
in furtherance of such illegal trade or intercourse. But the rule pro-
288
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
hibiting commercial intercourse will not apply where the transaction
in question is entered into between persons who, although otherwise
enemies, are not in fact divided by the line of war. Nor does it apply
to transactions which are specially privileged or excepted; such as
licensed trade and contracts incidental thereto, or contracts for neces-
saries entered into by British subjects held as prisoners by the enemy.
With respect to existing transactions and relations, the primary
rule—which applies to all cases not excluded on some special ground-
is that they are suspended during the war both as to their legal effects
and, in strict law, as to all rights or suit thereon, but revive on the
restoration of peace. So in Ex parte Boussmaker (13 Ves. 71), where
an application was made on behalf of certain foreign creditors of an
English bankrupt to be admitted to prove against the estate—a claim
previously denied to them, on the ground that they were alien ene-
mies—the claim was allowed by Lord Erskine, L. C., on the ground
that although a creditor who was an alien enemy could not sue after
the outbreak of war or during its continuance, yet if the contract out
of which the debt arose had been made before the war—as was there
the case—the right to sue would revive on the return of peace; from
which it followed that any dividend to which these creditors were
entitled could not be confiscated or divided amongst the other credit-
ors, but must be kept in hand for the benefit of the claimants after the
restoration of peace.
Cobhett, pt. II, pp. 65, 66.
The contract in this case [Esposito v. Bowden, 1851; 27 L. J. B.
17; 7 E. & B. 763], it will be observed, was not between enemies, but
between a British subject and a neutral; but, inasmuch as it could not
be fulfilled without violating the rule of non-intercourse, and could
not conveniently to either party be suspended, it was held to be
abrogated. The judgment also serves to illustrate the nature and
scope of the rule of non-intercourse, founding this rule on the jus
belli, which itself constitutes part of the common law, and treating
it as a rule of international, rather than of municipal, law. It was
also held that the application of the rule in this particular case was
not affected by the Orders in Council. See also The Teutonia (4
P. C. 171)
Cobbett, pt. II, p. 74.
In this case [Kershaw v. Kelsey, 1868; 100 Mass. 561] the American
Court, whilst affirming generally the rule of non-intercourse, held it
to be inapplicable as regards persons who though enemies in point
of nationality or allegiance were resident in the territory of the
same belligerent, and as regards transactions beginning and ending
there. “An alien enemy," it was said, “residing in this country may
SUSPENSION OF INTERCOURSE.
289
contract and sue like a citizen." And with this view the English law
appears, in the main, to agree. So in Wells v. Williams (1 Ld. Raym.
282) in an action on a bond-in which the defendant pleaded that the
plaintiff was an alien enemy who had come to England sine salvo
conductu, and the plaintiff replied that at the time of the making of
the bond he was and still remained in England by the license and
protection of the Crown—it was held that an alien enemy who was
here in protection could sue on his bond or contract, although an
enemy abiding in his own country could not. And, in spite of some
authority to the contrary, it would seem that the plea of alien enemy
could not now be set up against subjects of a hostile State who, even
without express license, continued to reside and to carry on business
in British territory.
Cobbett, pt. II, p. 80.
GENERAL NOTES.-The Effect of War on Commercial Intercourse.
There is still much divergence alike of opinion and practice as to the
effect of war on commercial intercourse between subjects of the re-
spective belligerents. According to one view—which is commonly,
although not universally, accepted by European publicists and fol-
loved by European Governments—the rule that war in itself involves
a prohibition of commercial intercourse no longer obtains, having
lapsed with the right of confiscation; although it is recognized that
the sovereign authority may impose such restrictions thereon as may
be required by political or military necessity. According to an-
other view—which is commonly, although again not universally, ac-
cepted by English and American writers, and which is, as we have
seen, also followed by the English and American Courts--the rule
that war in itself involves a general prohibition of intercourse as
between persons residing in the territories of the respective belliger-
ents still obtains, both as a rule of municipal and international law;
although it is here too recognized that the rule is subject to relaxation
by the sovereign authority. This view rests on the grounds that such
persons are still to be regarded as enemies for the general purposes of
the war; that to allow a continuance of commercial intercourse would
tend to strengthen the enemy's resources, and to supply him with in-
formation; and, finally, that the fact of an enemy person having in
general no persona standi in judicio excludes altogether a state of
legal commerce.
Cobbett, pt. II, p. 85; Matthews 1. McStea, 91 U. S. 7; The Hoop,
1
1 C. Rob. 196.
All the foreign writers on international law concur in opinion that
the immediate and necessary consequence of a declaration of war is to
:
290
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
interdict all intercourse or dealing between the subjects of the bellig-
erent States. That doctrine is founded on the principle that a dec-
laration of war puts not only the adverse governments, in their
political capacity, at war, but renders all the subjects of the one the
enemies of all the subjects of the other (Vattel, bk. 3, c. 5, s. 70;
Grotius, bk. 3, c. 3, s. 9; Bynkershoeck. Quaest. Jur. Pub., bk. 1, c. 3;
Burlamaqui, pt. 4, c. 4, s. 20; Malby, Droit Public de l'Europe, tom. 6,
p. 356, c. 11, div. 12). Vattel, indeed, goes so far as to say that the
declaration of war authorizes and even obliges every subject, of
whatever rank, to secure the persons and things belonging to the
enemy when they fall into his hands” (bk. 3, c. 15, s. 227); but, as
observed by Sir J. Nicholl in Potts v. Bell, 8 T. R. 554, this is by
custom limited to those who have commissions from their respective
governments for that purpose. By the maritime law, trading with
the enemy without a licence from the Crown has been uniformly ad-
judged a cause of confiscation. In the case of The "Hoop," 1 Rob.
Adm. Rep. 198, Sir W. Scott assigns as one reason for the rule the
consequences which might follow if every person, under colour of
commercial correspondence, was enabled to carry on any other species
of intercourse which we might think fit. Another, but perhaps less
satisfactory reason assigned, is the total inability of the enemy to
enforce the contract. The learned judge cites, as instances of the
strictness of the rule, the following among other cases :-In The
Bella Guidita," decided in the House of Lords on appeal in 1785,
it was held unlawful for a British subject to send supplies to the
British plantations in the Granada Islands whilst in possession of
the French. In The “Elnigheid," decided in 1795, corn had been
shipped by a British and Dutch house from Rotterdam to Nantes
in December, 1792, before hostilities were declared between France
and England, but from various accidental causes the ship was pre-
vented from sailing until war had been declared, and it was held that
-the cargo was lawfully condemned. In the case of The “William,”
decided in 1795, the claimants were British merchants residing in
Granada, who had considerable debts owing to them from French
merchants in Guadaloupe, and the sugars in question had been re-
ceived in payment by the agents of the claimants, and shipped on
their account, but the remittance was held unlawful. Again, in the
case of The “ Neptune," 6 Rob. Adm. Rep. 405, Sir W. Scott says-
“It is well known that a declaration of hostilities naturally carries
with it an interdiction of all commercial intercourse; it leaves the
belligerent countries in a state that is inconsistent with the relations
of commerce.” It makes no difference that the goods were purchased
before the war (The “St. Philip," cited by Sir J. Nicholl in Potts
v. Bell, 8 T. R. 556). And even where an Englishman attempted to
SUSPENSION OF INTERCOURSE.
291
remove from the enemy's country his property acquired before the
war, the property was confiscated (“ Juffrouw Louisa Margaretha,"
cited by Sir W. Scott, 1 Rob. Adm. Rep. 203; 1 B. & P. 349, note;
see also the observations of Sir W. Scott in The“ Odin," 1 Rob. Adm.
Rep. 248; The“ Cosmopolite," 4 Rob. Adm. Rep. 8; The “Neptunus,"
6 Rob. Adm. Rep. 403; The "Goede Hoop," 1 Edw. Adm. Rep. 328).
The same rule has prevailed in the common law from a very early
period. In the treatise De l'Office del Admiralty, it is said—“ Item
soit enquis de tous ceux qui entrecommunent, vendent ou achetent,
avec aucuns des ennemis de notre seigenur Le Roi, sans license
especiale du Roi ou de son admiral”; 1 Roughton, art. 3, and note;
Seldon's note to Fortescue, De. Laud. Leg. Ang., ch. 32; see also
2 Roll, 173, pl. 3; Bro. tit. “Denizen and Alien,” pl. 20. The subject
was incidentally but elaborately discussed in The East India Com-
pany v. Sands, 10 State Trials 371; 2 Show. 366; and it was con-
ceded that all contracts and dealings with an enemy were unlawful.
It is singular that Lord Hardwicke, C., in Henckle v. Royal Exchange
Insurance Company, 1 Ves. sen. 317, should have said—“No deter-
mination has been that insurance on enemies' ships during the war is
unlawful; it might be going too far to say all trading with enemies
is unlawful, for that general doctrine would go a great way even
where only English exported and none of the enemies imported,
which may be very beneficial.” Also, in Gist v. Mason, 1 T. R. 88,
Lord Mansfield, C. J., said—“ It is nowhere laid down that policies
on neutral property, though bound to an enemy's port, are void. And,
indeed, I know no cases that prohibit even a subject trading with the
enemy except two, one of which is a short note in Roll. Abr. (2 Roll.
Abr. 173, pl. 3) where trading with Scotland, then in a general state
of enmity with this kingdom, was held to be illegal; and the other
was a note (which is now burned) which was given to me by Lord
Hardwicke of a reference in King William's time to all the judges,
whether it were a crime at the common law to carry corn to the
enemy in time of war, who were of opinion that it was a misde-
meanour.” With respect to this opinion of Lord Mansfield, Buller, J.,
said—“ I more than once conversed with Lord Mansfield on the sub-
ject, being desirous to obtain his opinion on the legality of such
insurances. On the legality, however, I could never get him to reason.
He often said that in former times it was considered for the interest
of the country to insure enemies' property; and on the persuasion of
its being for the interest of the country, he always discountenanced
any objection on that head” (Bell v. Gilson, 1 B. & P. 354). But
whatever doubt may have formerly existed, it is now clear that such
insurances are void. In ex parte Lee, 13 Ves. 64, Lord Eldon, C.,
says—“ The law upon this point is now perfectly settled, and stands
292
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
191;
upon a very sound principle of policy, though frequently producing
great hardship upon individuals, that a subject of this country shall
not enter into an insurance that will have the effect of protecting the
property of persons who are subjects of a country in hostility with
this." (See also 33 Geo. III, c. 27, s. 4; Brandon v. Nesbitt, 6 T.R. 23;
Bristow v. Towers, 6 T. R. 35; Kellner v. Le Mesuirier, 4 East, 397;
Gamba . Le Mesurier, 1 East, 407; Brandon v. Curling, 4 East,
410; Mennett. v. Bonham, 15 East, 477; Furtado v. Rogers, 3 B. & P.
Park on Insurance, 13, 522; Le Guidon, ch. 2, s. 5; Consulat de
la Mer par Boucher, s. 1540; Valin. Com. liv. 3, tit. 6, art. 3; Emerigon,
cap. 4, s. ix. The doctrine that war puts an end to all trading,
negotiation, communication, or intercourse between the subjects of
the hostile States has been recognised and adopted in America
(Griswold v. Waddington, 16 Johnson, 438; S. ·C., 15 John. 37),
where Chancellor Kent, in a most elaborate judgment, reviews all the
authorities on the subject. As a consequence of that rule, it was there
held that a declaration of war operated ipso facto as a dissolution of
partnership then existing between two subjects of the hostile States.
See also 1 Kent Com. Lect. 3. There is an exception to the rule in
the case of ransom bills, which are contracts arising from a state of
hostility (Vattel, bk. 3, c. 16, s. 264; Le Guidon, ch. 6, art. 2; Emer-
igon, ch. 12, s. 21). But see the 22 Geo. III, c. 25, as to the ransoming
of ships or goods. Where, however, a bill of exchange was drawn
by one prisoner upon another, and endorsed to an alien enemy, the
latter was allowed to recover on the bill after the return of peace
(Antoine ». Morshead, 6 Taunt. 237). It is difficult to support that
decision on principle, and Gibbs, C. J., in Willison v. Patteson, 7
Taunt. 439, treats it as an exception to the general rule, founded on
necessity.
Trotter, pp. 194–197.
Right of Intercourse.—a. In General. In general in case of war all
intercourse between those subject to the jurisdiction of one belligerent
State and those subject to the jurisdiction of the other is forbidden.
G. G. Wilson in 40 Cyc. p. 324.
1 Bishop v. Jones, 28 Tex. 294, holding that there cannot be “ a war for arms and a
peace for commerce."
The civil war arrested all commercial intercourse and communications between the
citizens of the seceding states and those of the loyal states. Harden v. Boyce, 59 Barb.
(N. Y.) 425. But see Speed v. Smith, 22 Fed. Cas. No. 13226, holding that the Civil war
had such effect only from the president's proclamation of Aug. 16, 1861, made in pursu-
ance of the act of Congress approved July 13, 1861.
Permission to people of seceded states occupied by the federal forces to trade with
the people of the loyal states was given by the president's proclamation of Aug. 16, 1861,
but such permission did not operate to change the relation of such territory as enemy
territory Shaw v. Carlile, 9 Heisk. (Tenn.) 594.
Recovery for conversion allowed in spite of illegal intercourse. Chappell v. Wysham,
4 Harr. & J. (Md.) 560 ; Charles y, McCune, 57 Mo. 166; Chauncey v. Yeaton, 1 N. H. 151.
1
SUSPENSION OF INTERCOURSE.
293
Trąde—(1) In General. Trade between opposing belligerents, and
all other communication, is forbidden, unless sanctioned by the
authority of the government, or in the exercise of the rights of
humanity.
G. G. Wilson in 40 Cyc. pp. 324, 325.
3
4
The nonintercourse acts of 1861.
The policy of the United States during the Civil war prohibited all
intercourse between the seceded states or their citizens and the outside
world, so that all aid and comfort might be cut off and the insurrection
put down.
G. G. Wilson in 40 Cyc. p. 326.
4
Law of United States during Civil War.
By the act of Congress of July 13, 1861, and the proclamation of
the president of August 16, 1861, all commercial intercourse between
the citizens of the loyal states and the inhabitants of the states de-
clared to be in insurrection was interdicted and became unlawful,
except to the extent it might be licensed by the president.
G. G. Wilson in 40 Cyc. p. 326.
“Your attention is directed to the following act of Congress, ap-
proved April 28, 1898, entitled 'An act declaring that war exists be-
tween the United States of America and the Kingdom of Spain':
656 Be it enacted by the Senate and the House of Representatives of
the United States of America in Congress assembled.
1 Harden v. Boyce, 59 Barb. (N. Y.) 425; Hart v.' U. S., 15 Ct. Ci. 414;
As to transportation see U. S. V. Gay's Gold, 25 Fed. Cas. No. 15, 194, 1 Woods 55
[affirmed in 13 Wall. 358, 20 L ed. 606].
Withdrawal of property from the enemy country.--A citizen temporarily residing in the
enemy's country at the breaking out of the war is entitled to a reasonable time to collect
his effects and convert them into available and manageable funds, so as to enable him to
withdraw them from the country. The John Gilpin, 13 Fed. Cas. No. 7,344, Blatchf.
Prize Cas. 61 [reversing 13 Fed. Cas. No. 7,343, Blatchf. Prize Cas. 291]. Where, upon
the breaking out of hostilities or as soon after as possible, the owner escapes with such
property as he can take with him, or in good faith thus early removes his property with
the view of putting it beyond the hostile power, the property in such cases is exempt from
the liability which would otherwise attend it. Armory v. McGregor, 15 Johns. (N. Y.)
24, 8 Am. Dec. 205 ; The Grey Jacket, 5 Wall. (U. S.) 342, 18 L. ed. 646; Fifty-Two Bales
of Cotton, 9 Fed. Cas. No. 4,785, Blatchf. Prize Cas. 644 [reversing 9 Fed. Cas. No. 4,784,
Blatchf. Prize Cas. 309). But a shipment eleven months after the outbreak of war is
too late. The St. Lawrence, 9 Cranch (U. S.) 120, 3 L. ed. 676. After a declaration of
war, a citizen of one belligerent cannot lawfully send a vessel to the enemy's country to
bring away his property. The Rapid, 8 Cranch (U. S.) 155, 3 L. ed. 520 [affirming 20
Fed. Cas. No. 11,576, 1 Gall. 295]. A naturalized citizen cannot lawfully bring away
his property from an enemy country, after a knowledge of the war, without the license
of the government. The St. Lawrence, 21 Fed. Cas. No. 12,232, 1 Gall. 467 [affirmed in
8 Cranch 434, 3 L. ed. 615.]
Right of removal of bank assets.—State Bank v. Woodson, 5 Coldw. (Tenn.) 176.
2 Hamilton v. Dillin, 21 Wall. (U. S.) 73, 22 L. ed 528; U. S. v. The Henry C.
Homeyer, 26 Fed. Cas. No. 15,353, 2 Bond 217.
3 The Julia, 8 Cranch (U. S.) 181, 3 L. ed. 528.
4 Cantu v. Bennett, 39 Tex. 303; Whitis v. Polk, 36 Tex. 602; U. S. V. The Henry C.
Homeyer, 26 Fed. Cas No. 15,353, 2 Bond 217..
294
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
“First. That war be, and the same is hereby, declared to exist,
and that war has existed since the twenty-first day of April, anno
Domini eighteen hundred and ninety-eight, including said day, be-
tween the United States of America and the Kingdom of Spain.
"Second. That the President of the United States be, and he
hereby is, directed and empowered to use the entire land and naval
forces of the United States, and to call into the actual service of the
United States the militia of the several States to such extent as may
be necessary to carry this act into effect.'
“The following instructions are issued for your guidance:
“First. Clearance will be refused to any vessel for a port of place
blockaded by the United States. (The President, on April 25th, pro-
claimed a blockade on the north coast of Cuba, including ports on
said coast between Cardenas and Bahia Ronda and the port of Cien-
fuegos on the south coast of Cuba.)
Second. Clearance will be refused to any vessel carrying goods
which are contraband of war for any Spanish port.
“ Third. Clearance will be refused to any vessel carrying coal for
any Spanish port.
“Fourth. Clearance will be refused to any American vessel for any
Spanish port.
“Fifth. Up to and including May 21, 1898, clearance will be granted
to any Spanish merchant vessel now in any port or place of the United
States for any foreign port, except a port blockaded by the United
States, provided that such vessel shall not have on board any officer
in the military or naval service of Spain, or any coal (except such as
may be necessary for the voyage), or any other article prohibited or
contraband of war, or any dispatch of or to the Spanish Government. .
Collectors will issue a certificate to any such vessel on clearance, re-
citing that said vessel has complied with the provisions of the procla-
mation of the President of the United States, signed April 26, 1898,
and by virtue of that proclamation is entitled to continue her voyage
if met at sea by any United States ship, except to a blockaded port.
To the certificate shall be attached a copy of the proclamation afore-
said.
“Clearance in ballast will be granted to any Spanish merchant ves-
sel which, prior to April 21, 1898, shall have sailed from any foreign
port bound for any port or place in the United States, as soon as her
cargo is discharged, for any foreign port, except a port blockaded by
the United States, provided such vessel shall not have on board any
officer in the military or naval service of Spain, or any dispatch of
or to the Spanish Government. Collectors will issue a certificate to
any such vessel on clearance, reciting that said vessel has complied
with the provisions of the proclamation of the President of the
SUSPENSION OF INTERCOURSE.
295
United States, signed April 26, 1898, and by virtue of that proclama-
tion is entitled to continue on her voyage if met at sea by a United
States ship, except to a blockaded port. To the certificate shall be
attached a copy of the proclamation aforesaid.
“Sixth. Clearance will be granted to any American or neutral
Tessel destined for a neutral port, with a cargo also destined for a
neutral port, without regard to the kind of cargo, on compliance with
the provisions of law.
66 Where officers of customs have reason to believe that coal or
articles considered contraband of war are destined for the use of
enemies of the United States, clearance will be withheld until a re-
port has been forwarded to, and instructions issued by the Depart-
ment.
"Seventh. Clearance will be issued in all other cases in compliance
with the provisions of law.
Eighth. Collectors in doubt in any particular application for
clearance will telegraph promptly the facts to the Department and
will withhold clearance until instructed.
“Ninth. The Department declines to give general advice to masters
and owners of vessels, shippers, consignees, etc. Any specific case
requiring action by the Department must be submitted by those con-
cerned to the proper officer of the customs, who, if in doubt, will
communicate with the Department and await instructions before
taking action."
Moore's Digest, vol. VII, pp. 241-243; circular of the Acting Secretary
of the Treasury to collectors of customs, Apr. 27, 1898, For. Rel. 1898,
66
1172.
It has always been the aim of this Government, since the days of
Franklin, to promote the increase and diffusion of scientific knowl-
edge, and likewise the aim to shield peaceful pursuits and the progress
of art and science as far as possible from the evil effects of war.
“In obedience to this policy and in the absence of special reasons
to the contrary, I can perceive no cause for changing the conduct of
the Smithsonian Institution in regard to sending scientific papers and
journals abroad and even to Spain and her colonies. Owing, how-
ever, to the present state of hostilities it would of course be prudent
that some care be taken as to the nature of the published material
which is sent to Spain and her colonies at present, and, that knowl-
edge and information relative to new scientific discoveries, or ad-
vances in military and naval warfare and kindred subjects, should
not be furnished."
Moore's Digest, vol. VII, p. 243; Mr. Adee, Act. Sec. of State, to Mr.
Langley, Sec. of Smithsonian Institution, Apr. 27, 1898, 228 MS.
Dom. Let. 52.
296
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
On the ground that hostilities between nations "suspend intercourse
and deprive citizens of the hostile nations of rights of an international
character previously enjoyed,” it was advised that so long as a state
of war existed between the United States and Spain, Spanish subjects
would have “no right to the privileges of copyright conferred upon
Spanish citizens by proclamation prior to the declaration of war;»
but that, when a treaty of peace should have been concluded, it would,
if the treaty was silent on the subject, “ be competent for the United
States, through its executive officers, to resume the exercise of such
rights and privileges as previously existed and have not been definitely
declared terminated," and would be“ entirely proper for the Librarian
of Congress to admit Spanish subjects after the conclusion and rati-
fication of the treaty to the same copyright privileges that they en-
joyed prior to the declaration of war."
Moore's Digest, vol. VII, pp. 243, 244; Griggs, At. Gen., Dec. 2, 1898,
22 Op. 268.
All unauthorized or secret communication with the enemy is con-
sidered treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign
visitors in the same, can claim no immunity from this law. They may
communicate with foreign parts, or with the inhabitants of the hostile
country, so far as the military authority permits, but no further.
Instant expulsion from the occupied territory would be the very
least punishment for the infraction of this rule.
Lieber, art. 98.
It is incumbent upon the contracting parties of an armistice to
stipulate what intercourse of persons or traffic between the inhabitants
of the territories occupied by the hostile armies shall be allowed,
if any.
If nothing is stipulated the intercourse remains suspended, as dur-
ing actual hostilities.
Lieber, art. 141.
As the state of war involves the prohibition of all commercial
relations between the belligerent nations you should stop French
merchant vessels which, unless authorized by a license, try to violate
this prohibition or which, with still greater guilt, seek to violate a
blockade or engage in the transportation of troops, official dispatches
or contraband of war for the account of the enemy or for an enemy
destination.
Captains and all persons suspected of complicity should be arrested
and sent to the nearest French judicial authority for prosecution if
need be under Articles 77 et seq. of the Penal Code.
French Naval Instructions, 1912, secs. 24, 25.
SUSPENSION OF INTERÇOURSE.
297
Nonintercourse the rule.-All intercourse between the territories
occupied by belligerent armies, whether by traffic, by letter, by travel,
or in any other way, ceases. This is the general rule, to be observed
without special proclamation.
Exceptions to rule.-Exceptions to this rule, whether by safe-con-
duct, or permission to trade on a small or large scale, or by exchang-
ing mails, or by travel from one territory into the other, can take
place only according to agreement approved by the government or
by the highest military authority. Contraventions of this rule are
highly punishable.
U. S. Manual, p. 71.
After a declaration of war, all intercourse, and not merely trading,
is forbidden; and an American citizen can not lawfully send a vessel
to the enemy's country to bring away his property.
Moore's Digest, vol. VII, p. 237; The Rapid (1814), 8 Cranch, 155.
In war, all intercourse between the subjects and citizens of the bel-
ligerent countries is illegal, unless sanctioned by the authority of the
government or in the exercise of the rights of humanity.
Moore's Digest, vol. VII, p. 237; The Julia (1814), 8 Cranch, 181.
The Government of the United States has power to permit limited
commercial intercourse with an enemy in time of war, and to impose
such conditions thereon as it sees fit; this power is incident to the
power to declare war, and to carry it on to a successful termination.
And it would seem that the President alone, who is constitutionally
invested with the entire charge of hostile operations, may exercise
this power; but whether so or not, there is no doubt that, with the
concurrent authority of the Congress, he may exercise it according
to his discretion.
Moore's Digest, vol. VII, p. 239; Hamilton v. Dillon, 21 Wall., 73.
A guardian's -liability is not terminated by a state of war. It is
suspended only until the return of peace, he being, 'during the war,
an enemy of the country or state wherein his liability was created.
Moore's Digest, vol. VII, p. 240, Lamar 1. Micou, 112 U. S., 452; s. C.
114 U. S., 218.
:
During the war the legislature of Virginia enacted that an act
performed by the one of two or more joint fiduciaries who lived in
Virginia, the others living in the Union States, should have the same
effect as though all had joined. Held, that the enactment was illegal,
and that a man who took a deed from one of the two trustees under
such circumstances, the will having created a joint trust, took no title.
Moore's Digest, vol. VII, pp. 240, 241; Lipse v. Spear, 4 Hughes,
C. C. 535.
110678—1920
298
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A. moved from Georgia in the North in 1862, leaving money with
an agent, who invested it in county bonds. The county pleaded, in
defense to A's suit on the bonds, United States Revised Statutes, sec-
tion 5301, prohibiting intercourse between the North and the South.
Held, that A. could recover.
Moore's Digest, vol. VII, p. 241; Commrs. of Bartow County v. Newell,
64 Ga. 699.
New York Life Insurance Co. v. Davis, 95 U. S. 425.-Mr. Jus-
tice Bradley said: “That war suspends all commercial intercourse
between the citizens of two belligerent countries or States, except
so far as may be allowed by the sovereign authority, has been so often
asserted and explained in this Court within the last fifteen years that
any further discussion of that proposition would be out of place. As
a consequence of this fundamental proposition it must follow that
no active business can be maintained, either personally or by corre-
spondence, or through an agent, by the citizens of one belligerent
with the citizens of the other. The only exception to the rule recog-
nized in the books, if we lay out of view contracts for ransoms and
other matters of absolute necessity, is that of allowing the payment
of debts to an agent of an alien enemy, where such agent resides in
the same State with the debtor. But this indulgence is subject to
restrictions. In the first place, it must not be done with the view
of transmitting the funds to the principal during the continuance of
the war, though if so transmitted without the debtor's connivance, he
will not be responsible for it. Washington, J., in Conn. v. Penn.
Pet. C. Ct. 496; Buchanan v. Curry, 19 Johns. (N. Y.) 141. In the
next place, in order to the subsistence of the agency during the war,
it must have the assent of the parties thereto-the principal and the
agent. As war suspends all intercourse between them, preventing
any instructions, supervision, or knowledge of what takes place, on
the one part, and any report or application for advice on the other,
this relation necessarily ceases on the breaking out of hostilities, even
for the limited purpose before mentioned, unless continued by the
mutual assent of the parties. It is not compulsory, nor can it be
made so on either side to subserve the ends of third parties. If the
agent continues to act as such, and his so acting is subsequently rati-
fied by the principal, or if the principal's assent is evinced by any
other circumstances, then third parties may safely pay money, for
the use of the principal, into the agent's hands, but not otherwise.
It is not enough that there was an agency prior to the war. It would
be contrary to reason that a man, without his consent, should con-
tinue to be bound by the acts of one whose relations to him have
undergone such a fundamental alteration as that produced by a war
SUSPENSION OF INTERCOURSE.
299
between the two countries to which they respectively belong, with
whom he can have no correspondence, to whom he.can communicate
no instructions, and over whom he can exercise no control. It would
be equally unreasonable that the agent should be compelled to con-
tinue in the service of one whom the law of nations declares to be
his public enemy. If the agent has property of the principal in his
possession or control, good faith and fidelity to his trust will require
him to keep it safely during the war, and to restore it faithfully at
its close."
Trotter, p. 242.
LIMITATION OF POWER TO CONTRAOT.
Illegality of contracts.
It follows as a necessary consequence of the doctrine of the illegal-
ity of all intercourse or traffic, without express permission, that all
contracts with the enemy, made during war, are utterly void.
The insurance of enemy's property is an illegal contract, because it
is a species of trade and intercourse with the enemy. The drawing
of a bill of exchange by an alien enemy, on a subject of the adverse
country, is an illegal and void contract, because it is a communication
and contract. The purchase of bills on the enemy's country, or the
remission and deposit of funds there, is a dangerous and illegal act,
because it may be cherishing the resources and relieving the wants
of the enemy. The remission of funds in money or bills to subjects
of the enemy is unlawful. The inhibition reaches to every communi-
cation, direct or circuitous. All endeavors at trade with the enemy,
by the intervention of third persons, or by partnerships, have equally
failed, and no artifice has succeeded to legalize the trade, without
the express permission of the government.
Every relaxation of the rule tends to corrupt the allegiance of the
subject, and prevents the war from fulfilling its end. The only ex-
ception to this strict and rigorous rule of international jurisprudence
is the case of the ransom bills, and they are contracts of necessity,
founded on a state of war, and engendered by its violence.
Kent, vol. 1, pp. 80–82.
Exception-war contracts.
There is another exception to the general rule, in the case of a war
contract arising out of a public necessity, created by the war itself.
This is the case of a bill of exchange drawn upon England by a
British prisoner in France, for his own subsistence, and endorsed to
an alien enemy, and which the latter, on the return of peace, was
allowed to enforce. Antoine v. Morshead, 6 Taunt. 237.
Kent, vol. 1, p. 82, note.
Ransom contracts.
Sometimes circumstances will not permit property captured at
sea to be sent into port; and the captor, in such cases, may either
destroy it, or permit the original owner to ransom it. It was for-
merly the general custom to redeem property from the hands of the
enemy by ransom; and the contract is undoubtedly valid, when mu-
300
LIMITATION OF POWER TO CONTRACT.
301
1
nicipal regulations do not intervene. It is now but little known in
the commercial law of England, for several statutes in the reign of
George III. absolutely prohibited to British subjects the privilege
of ransom of property captured at sea, unless in a case of extreme
necessity, to be judged of by the court of admiralty. A ransom bill,
when not locally prohibited, is a war contract, protected by good
faith and the law of nations; and notwithstanding that the con-
tract is considered in England as tending to relax the energy of
war, and deprive cruisers of the chance of recapture, it is, in many
views, highly reasonable and humane. Other maritime nations re-
gard ransoms as binding, and to be classed among the few legitimate
commercia belli. They have never been prohibited in this country;
and the act of Congress of August 2, 1813, interdicting the use of
British licenses or passes, did not apply to the contract of ransom.
The effect of a ransom is equivalent to a safe-conduct granted by
the authority of the state to which the captor belongs, and it binds
the commanders of other cruisers to respect the safe conduct thus
given; and under the implied obligation of the treaty of alliance,
it binds equally the cruisers of the allies of the captor's country. From
the very nature of the connection between allies, their compacts with
the common enemy must bind each other, when they tend to accom-
plish the objects of the alliance. If they did not, the ally would
reap all the fruits of the compact, without being subject to the terms
and conditions of it; and the enemy with whom the agreement was
made would be exposed, in regard to the ally, to all the disadvan-
tages of it, without participating in the stipulated benefits. Such
an inequality of obligation is contrary to every principle of reason
and justice.
The safe-conduct implied in a ransom bill requires that the vessel
should be found within the course prescribed, and within the time
limited by the contract, unless forced out of her course by stress of
weather or unavoidable necessity. If the vessel ransomed perishes by
a peril of the sea, before arrival in port, the ransom is, nevertheless,
due, for the captor has not insured the prize against the perils of the
sea, but only against recapture by cruisers of his own nation, or of
the allies of his country. If there should be a stipulation in the ran-
som contract, that the ransom should not be due if the vessel was
lost by sea perils, the provision ought to be limited to total losses by
shipwreck, and not to mere stranding, which might lead to frauds,
in order to save the cargo at the expense of the ship.
If the vessel should be recaptured, out of the route prescribed by
the contract for her return, or after the time allowed for her return,
and be adjudged lawful prize, it has been made a question whether the
debtors of the ransom are discharged from their contract. Valin
302
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
says, that, according to the constant practice, the debtors are dis-
charged in such case, and the price of the ransom is deducted from
the proceeds of the prize, and given to the first captor, and the
residue goes to the second taker. So, if the captor himself should
afterwards be taken by an enemy's cruiser, together with his ransom
bill, the ransom becomes part of the lawful conquest of the enemy,
and the debtors of the ransom are, consequently, discharged from
the contract under the ransom bill.
Kent, vol. 1, pp. 119–121; Goodrich v. Gordon, 15 Johns. 6; Miller v.
The Resolution, 2 Dallas, 15.
Suit on ransom contract.
In the case of Ricord v. Bettenham, an English vessel was cap-
tured by a French privateer, in the war of 1756, and ransomed and
a hostage given as a security for the payment of the ransom bill.
The hostage died while in possession of the French, and it was
made a question in the K. B., in a suit brought upon the ransom bill
after the peace, whether the death of the hostage discharged the con-
tract, and whether the alien could sue on the ransom bill in the
English courts. It was shown that such a contract was valid among
the other nations of Europe, and that the owner of the bill was
entitled to sue upon it, and that it was not discharged by the death of
the hostage, who was taken as a mere collateral security, and the
plaintiff was, accordingly, allowed to recover. But it has been since
decided, and it is now understood to be the law, that during war,
and while the character of alien enemy continues, no suit will lie in
the British courts by the enemy, in proper person, on a ransom bill,
notwithstanding it is a contract arising jure belli. The remedy to
enforce payment of the ransom bill for the benefit of the enemy captor
is by an action by the imprisoned hostage, in the courts of his own
country, for the recovery of his freedom. This severe technical objec-
tion would seem to be peculiar to the British courts, for it was
shown, in the case of Ricord v. Bettenham, to be the practice in
France and Holland to sustain such actions by the owner of the
ransomed contract. Lord Mansfield considered the contract as worthy
to be sustained by sound morality and good policy, and as governed
by the law of nations and the eternal rules of justice. The practice
in France when a French vessel has been ransomed, and a hostage
given to the enemy, is for the officers of the admiralty to seize the
vessel and her cargo, on her return to port, in order to compel the
owners to pay the ransom debt, and relieve the hostage; and this
is a course dictated by a prompt and liberal sense of justice.
Kent, vol. 1, pp. 121-122; Ricord 2. Bettenham), 3 Burr. 1734; Anthon 19.
Fisher, Doug. 649, note; The Hoop, 1 C. Rob. 196; Cornu ?. Black-
burne, Doug. 641.
LIMITATION OF POWER TO CONTRACT.
303
Recapture of ransom bill.
The recapture of the ransom bill, according to Valin, puts an end
to the claim of the captor. He may be deprived of the entire benefit
of his prize, as well as of the ransom bill, either by recapture or
rescue, and the questions arising on them lead to the consideration of
postliminy and salvage. Upon recapture from pirates, the property
is to be restored to the owner, on the allowance of a reasonable com-
pensation to the retaker in the nature of salvage; for it is a prin-
ciple of the law of nations that a capture by pirates does not, like
a capture by an enemy in solemn war, change the title, or divest the
original owner of his right to the property, and it does not require
the doctrine of postliminy to restore it. In France, property may
be reclaimed by the owner within a year and a day; but in some
other countries (and Grotius mentions Spain and Venice) the rule
formerly was that the whole property recaptured from pirates went
to the retaker, and this rule was founded on the consideration of the
desperate nature of the recovery.
Kent, vol. 1, p. 122.
This doctrine (of suspension of intercourse] renders null and void
all contracts with the enemy during the war; it makes illegal the
insurance of enemy's property, prohibits the drawing of bills of
exchange by an alien enemy on a subject of the adverse Government,
the purchase of bills on the enemy's country, or the remission and
deposit of funds there, and the remission of money or bills to sub-
jects of the enemy.
Halleck, p. 358.
Exceptions to rule against contracting.
The only exceptions to this strict and rigorous rule (against con-
tracting with the enemy] of international jurisprudence, are “con-
tracts of necessity, founded on a state of war, and engendered by
its violence." All ransom bills come under this exception, as, also,
bills of exchange drawn by a prisoner in the enemy's country for his
own subsistence.
In the case of a bill of exchange drawn upon England, by a British
prisoner in France, for his own subsistence, and indorsed to an alien
enemy, the latter was allowed to enforce it on the return of peace.
Halleck, p. 359; Antoine v. Morshead, 6 Taunton, 237,
Ransom contracts. .
It may, for various reasons, be inconvenient to send a prize into a
port, and a captor so situated will be apt, if permitted, to let the
prize go free again for less than its worth. For these reasons, and in
accordance with the practice of ransom formerly so common on the
land, it began to be, about the end of the seventeenth century, the
304
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
custom to allow captors to liberate a captured vessel on an engage-
ment to pay a certain ransom, 'which may be looked at in the light of
a repurchase. The receipt for the ransom is of the nature of a pass-
port or safe conduct, and contains a permission, good against all
cruisers of the belligerent or his ally, to pursue à certain voyage.
Only in cases of necessity can the route and time laid down be de-
parted from without violating the contract. The contract insures
against molestation from other cruisers, but not against other kinds
of hazard, and the ransom would still be binding, if nothing were
said to the contrary, in case the vessel perished by the perils of the
seas.
As it was difficult to enforce the payment of ransom during war,
the custom once prevailed more or less to deliver over to the captor
hostages, who might be detained until the liquidation of the contract,
and whose expenses were provided for in the ransom-bill. The
hostage being only collateral security, his death or flight could not
release from the contract. If the master or owners refused to fulfill
their stipulation, the hostage's remedy lay in an appeal to the courts
of the captor's or owner's country.
If a ransomed vessel is captured out of its course and condemned, the
ransom is deducted from the proceeds of the vessel, and only the re-
mainder goes to the second captor. If the captor's vessel is recap-
tured, with the ransom contract, or with the hostages, or with both
on board, there is held to be a complete end to all claim for payment.
If, on the other hand, the captor's vessel is taken after putting the
ransom-bill and hostage in a place of safety, the contract continues
unimpaired; nay, it is held so to continue, if the captor's vessel is
taken, and the securities for the payment of ransom are concealed
so as not to come into the actual possession of the second captor.
And, again, when a captor's vessel was captured with the hostage and
the ransom-bill on board, in which there was an agreement that pay-
ment should be binding notwithstanding a possible second capture,
the Engļish courts decided that the first captor, being an alien, could
not by their laws bring a suit for the recovery of a right acquired in
actual war. But in this case the hostage might sue, or in case of his
death, the captor after the end of the war.
The master of a vessel being an agent for the owners, they are
bound by his act, when not fraudulent nor contrary to usage. But if
the ransom should exceed the value of ship and cargo, it is held that
the owners by surrendering these may be free from obligation.
A ransom contract is not invalid under the law of nations, although
made in war, since it contemplates a state of war which it seeks to
mitigate. [Accordingly it is the custom, though not in Great Britain,
to allow either party to a ransom contract to bring suit on it in the
courts of the other.] No nation is bound to allow its citizens to give
LIMITATION OF POWER TO CONTRACT.
305
or receive ransom-bills. By a French ordinance of 1756, privateers
were forbidden to ransom a vessel until they had sent three prizes
into port. The power of granting ransom has been taken away by
acts of Parliament from English cruisers, except in extreme cases
to be allowed by the courts of admiralty. The reason alleged for this
legislation is, that captors might abuse their power of ransoming
vessels and injure neutral trade.
To this it may be added that ransom is forbidden by Sweden in a
regulation of 1788, by Denmark in one of 1810, by Holland in an
ordinance of 1781, by Russia apparently since 1787, and by Spain,
so far as neutral vessels are concerned, since 1782. In France no
neutral ship can be ransomed, nor can an enemy's vessel be ransomed
without a certain authorization and certain formalities. Our law
permits ransom both of hostile and of neutral vessels, on the ground
that in both cases it is a mere remission of the rights of the captors
to what they take in war, so that every prohibition of it must ex-
pressly depend on the regulations of each particular country.
Hautefeuille opposes ransom of neutral vessels on the following
grounds: 1. The seizure of neutral property ought to be pronounced
lawful by a decision of a prize-court; hence neutrals would be in-
jured by demanding a ransom from them before such a decision. To
which Gessner's reply is perfectly convincing, that“ the neutral con-
sents to it, and no one takes from him the right of demanding that
his vessel shall be seized and tried. Moreover, the ransom does not
deprive him of the eventual benefit of a favorable sentence. The pro-
ceedings follow their course none the less, and if they end in clearing
the vessel, the captor, of course, must pay the ransom back. The
neutral, then, has in this case the advantage of avoiding seizure and
of freely continuing his voyage with his cargo.” 2. Hautefeuille's
other objection is, that by granting ransom to neutral vessels, a na-
tion and its cruisers are accessories, so to speak, to their carrying
contraband to the other belligerent. But the belligerent will be likely
to provide for his interests in directions given to his vessels of war;
and, besides, the ransom does not permit the neutral vessel, if it has
contraband on board, to take it to a blockaded port. It still has an-
other gauntlet to run.
“Most German and French publicists agree
in pronouncing ransoms of neutral property permitted by interna-
tional law." Gessner, u. s.
Woolsey, pp. 245-247.
Ransom contracts.
Amongst commercia belli permissible through circumstances of
necessity, ransom contracts are included by many States. They are
entered into by the commanders of prizes with the captors; and
1+
306
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
hence the captors are enabled to sue directly on the ransom bill. In
1765 Lord Mansfield (in Ricord v. Bettenham) - upheld the lawful-
ness of a ransom contract, and rejected the two pleas for the defence
to the effect that the hostage given for the fulfilment of the agree-
ment had meanwhile died in prison, and that all contracts between
subjects of combatants are necessarily illegal. But in Furtado v.
Rodgers, Lord Alvanley stated that no action (except in the case
just cited) was ever maintained upon a ransom bill in a Court of
common law, and that in the Admiralty Court, according to the au-
thority of Sir William Scott, the suit was always brought by the
hostage. In 1781 British subjects were by statute (22 Geo. III. c.
25) prohibited from entering into such contracts; but now, by the
Naval Prize Act, 1864 (27 & 28 Vict. c. 25, s. 45), the King in Coun-
cil may allow British owners to ransom their property, and anyone
acting in contravention of any Order so made is liable to a fine of
five hundred pounds for every offence.
Phillipson, pp. 67-68.
ܕ
Relaxations of rule against contracting.
In the question of life insurance the severity of the old rule has
been somewhat modified. 'It has been held that continuing perform-
ance is not essential in a state of war. Again, relaxations have been :
made in connection with trading companies, and in contracts be-
tween lessor and lessee. The modern tendency is to prohibit or
l'ender void only such transactions as are clearly calculated to enrich
or fortify the enemy during the continuance of the war.
In the American case, Kershaw v. Kelsey 3 (1868), Gray, J., clearly
indicated the extent of prohibition of business relationships between
subjects of belligerent Powers, and the tendency to lessen the area
of restriction. “The law of nations as judicially declared prohibits
all intercourse between citizens of the two belligerents which is in-
consistent with the state of war between their countries; and this.
includes . . . any act or contract which tends to increase his re-
sources, and every kind of trading or commercial intercourse, whether
by transmission of goods or money, or by orders for the delivery of
either between the two countries, directly or indirectly, or through
the intervention of third persons or partnerships, or by contracts in
any form looking to or involving such transmission, or by insurances
upon trade with or by the enemy. Beyond the principle of these
cases, the prohibition has not been carried by judicial decision. ...
At this age of the world, when all the tendencies of the law of na-
tions are to exempt individuals and private contracts from injury
or restraint in consequence of war between their governments, we are
1 W. Black, 563.
2 3 B. & P. 191.
3 100 Mass. 561.
LIMITATION OF POWER TO CONTRACT.
307
:
not disposed to declare such contracts unlawful as have not been
heretofore adjudged to be inconsistent with a state of war."
On the extent of the intercourse permitted depends the validity of
any distinct contracts relating thereto. Hence all contracts, except :
cases of commercia belli already mentioned, entered into after the
outbreak of hostilities are void and incapable of enforcement at any
time, and probably also such contracts as have been made in con-
templation of war. Those not so made, and existing before war
began, are not absolutely extinguished, but are held in abeyance
until the conclusion of peace, when they ipso facto revive.
Phillipson, pp. 68–70.
Contracts concluded during war.
Contracts concluded during the war with enemy subjects are illegal
and void—an immediate corollary of the interdiction of commerce.
After the resumption of peace, no action can be brought at any time
on such contract. Apart from the numerous decisions to this effect
in the Courts both of Great Britain and the United States, the rule
is admitted by Bynkershoek, Calvo, Kent, Phillimore, and Twiss,
but denied by Bluntschli.
Phillipson, p. 73.
Insurance on private property on land.
As to insurances on private property on land before the outbreak
of war, it is conceived that the generally accepted rule which exempts,
such property from seizure will at the same time render valid insur-
ances thereon. The guiding principle will be the policy of the Gov-
ernment, and whether it is clearly its object to capture or destroy
property of that kind in order to bring the war to a quick and success-
ful conclusion. As a penalty for military offences, enemy private
property is liable to seizure; hence insurance against such a loss
would be held void, on the ground that such loss is deliberately in-
flicted by the Government. In the case of forced contributions for
the support of an invading army, an insurance against such loss would
probably be permissible, on the ground that the loss incurred is not
primarily intended as a deprivation of the individual of his property.
Enemy property found on the field of battle, or captured in the taking
of a fortress, may be lawfully confiscated; hence insurances against
such seizure would probably be held invalid. In the South African
war, questions arose as to the legality of insurances of property by a
British subject against seizure by the Transvaal Government. In the
case of Janson v. Driefontein Consolidated Mines Co., it was con-
sidered whether an insurance was valid if effected by a British subject
on enemy property against seizure by the enemy government. If the
loss occurred after the outbreak of hostilities, the insurance would be
308
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
illegal, for if it were allowed it would be equivalent to an indemnifica-
tion of the enemy, and a consequent impairing of the national war
policy. If the loss occur before the war, though at a time when war
seems probable, such an insurance would be legal, as the strict test is
actual, not probable conditions.
In the case of Nigel Co. v. Hoade, the question was whether an in-
surance was lawful if effected by a British subject on the property of
another British subject, situated in enemy territory, against seizure
by the enemy government. Now it is never the policy of a State in
the conduct of war to inflict losses on its own subjects; consequently it
is not illegal for one subject to insure a fellow subject against losses of
this nature. The essential criterion is whether the owner or the prop-
erty had become vested with enemy character. If through any de-
liberate act or clear intention of the owner, he himself or his property
has in any way become identified with the enemy, then the insurance
would be illegal.
Phillipson, pp. 83–85.
!
Contracts of a prisoner of war on enemy territory.
The rule of non-intercourse is not applied in the case of a prisoner
of war detained on enemy territory. By an exception, arising out of
necessity, he may draw bills for his subsistence and indorse them to an
enemy, who may recover upon them on the termination of hostilities,
or may transfer them by endorsement. Thus, in an action ? upon cer-
tain bills of exchange drawn in 1806 by the father of the defendant, a
British subject, whilst he was detained a prisoner in France during
the war with that country, payable to British subjects also detained
there as prisoners, at one year after date, indorsed to the plaintiff, as
French banker, and accepted by the defendant, Dallas, J., said: “This
is not a contract between a subject of this country and an alien enemy,
nor is it a contract of that sort to which the principle can be applied.
That principle is that there shall be no communication with the enemy
in time of war, but this is a contract between the two subjects in an
enemy's country, which is perfectly legal."
But a bill drawn by an alien enemy on a domiciled British subject,
and indorsed to a British subject resident in the enemy territory, was
considered invalid, as it amounted to a direct trading with the enemy
on the part of the acceptor; so that even after the resumption of peace,
it gave no right of action.
A prisoner of war in this country may recover upon a contract for
services rendered by him whilst a prisoner, e. g., wages for working a
ship home.
3
Phillipson, pp. 87–89.
12 K. B. 840.
2 Antoine v. Morshead, 6 Taunt. 227.
3 Willison v. Patterson, 7 Taunt. 439.
LIMITATION OF POWER TO CONTRACT.
309
Contracts between lessor and lessee.
In a contract between landlord and tenant, the landlord was allowed
by the American Courts to sue after the close of the war for the unpaid
rent. In the case of Kershaw v. Kelsey (1868), a landlord, before his
departure into enemy territory, appointed an agent to receive the rent
of his property on his behalf; it was held that the agent was legally
authorized
In this case a citizen of Massachusetts, resident in Mississippi dur-
ing the Civil War; leased a plantation, but was driven away by sol-
diers of the Confederate States, and returned to his native State. The
lessor then took charge of the plantation, and delivered a certain
amount of cotton to the lessee's son in Mississippi, who shipped it to
the lessee at Boston. On the conclusion of the war the lessor sued for
rent, &c., and the question was, as between lessor and lessee, whether
there was trading between enemies. In pronouncing judgment,
Gray, J., said: “The lease now in question was made within the rebel
territory, where both parties were at the time, and would seem to have
contemplated the continued residence of the lessee upon the demised
premises throughout the term. No agreement appears to have been
made as part of a contract contemporaneously with the lease, that the
cotton crop should be transported, or the rent sent back, across the line
between the belligerents, and no contract or communication appears to
have been made across that line relating to the lease, the delivery of
possession of the premises or of the corn, or the payment of the rent
of the one or the value of the other. The subsequent forwarding of
the cotton by the defendant's son from Mississippi to Massachusetts
may have been unlawful; but that can not affect the validity of the
agreements contained in the lease. Neither of these agreements in-
volved or contemplated the transmission of money or property, or
other communication, between the enemy's territory and our own.
We are therefore unanimously of opinion that they did not contra-
vene the law of nations, or the public Acts of the Government, even if
the plantation was within the enemy's lines, and that the plaintiff,
upon the case reported, is entitled to recover the unpaid rent and the
value of the corn.” This case has been frequently cited and followed
in America.
As to the contracts between lessor and lessee in case of an enemy's
invasion into the territory, it is simply a question of municipal law
of the country concerned. Voet says:1“ If the lessee have a just cause
for vacating the property let he is not liable to pay rent, except in
so far as he has had the use of the thing let to him"; and among
the just causes for vacating the property he includes an incursion of
the enemy which the lessee could not resist. He adds that the prin-
1 xix., 2.23,
310
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ciple does not hold good if a lease is made whilst war is raging, so
that an imminent destruction by the troops of the enemy might have
been foreseen. These principles have been applied by the Cape
Supreme Court.
Phillipson, pp. 89, 90, 91; Kershaw v. Kelsey, 100 Mass. 561; Scott's
Cases on International Law, p. 538, note; Rubidge v. Hadley, 2 Menz.
175.
It is a well-established principle of the law that war suspends all
commercial relations between the subjects of the belligerents. All
contracts made by the subjects of a State with the subjects of a State
at war with it, unless covered by a public licence, are null and void
ab initio. “In the law of almost every country, the character of an
enemy carries with it a disability to sue, or to sustain, in the language
of the civilians, a persona stondi in judicio. ... If the parties who
are to contract have no right to compel the performance of the con-
tract, nor even to appear in a court of justice for the purpose, can
there be a stronger proof that the law imposes a legal disability to
contract? To such transactions it gives no sanction; they have no
legal existence; and the whole transaction is attempted without its
protection and against its authority.”
Latifi, p. 50, quoting Sir W. Scott in The Hoop, 1 C. Rob. 196.
All contracts, entered into during a war, [Willison v. Patteson
(1817), 7 Taunt, 439.] with alien enemies without a special licence
are illegal, invalid, and can never be enforced, unless the contract
was one entered into in case of necessity, [Antoine v. Morshead
(1815), 6 Taunt, 237.] or in order to supply [The Madonna delle
Gracie (1802), 4 C. Rob. 195.] an invading English army or the
English fleet, or by prisoners [Maria v. Hall (1800), 2 B. & P. 236.]
of war concerning personal services and requirements.
Oppenheim, vol. 2, p. 137.
The doctrine as to new contracts with enemy subjects was thus
expressed by Lord Stowell in The Hoop, 1 C. Rob. 196, Scott 521 :
“In my opinion there exists a general rule in the maritime juris-
prudence of this country, by which all trading with the public enemy
unless with the permission of the sovereign is interdicted.” But
Chief Justice Gibbs, in Antoine v. Morshead, 6 Taunton 332, Scott
573, expressed himself as follows: “A contract made with an alien
enemy in time of war, of such a nature that it endangers the security
or is against the policy of this country, is void. Such are policies of
insurance to protect an enemy's trade.” This might be read as an
adoption of the former of the two opinions above contrasted, reserv-
ing to the court the liberty of treating a contract with an enemy
LIMITATION OF POWER TO CONTRACT.
311
subject as illegal from the circumstances, as was done by the Berlin
court in Güterbock's 'case. But the judgment as a whole will not
bear that interpretation. A bill of exchange had been drawn by one
of the British subjects detained as prisoners in France by Napoleon,
for money which he required for his subsistence, and was sued on
after the peace by the French indorsee. The plaintiff succeeded,
evidently because the case fell within the principle of the commercia
belli. “How," said Gibbs, C. J., “was the payee to avail himself of
the bill except by negotiating it, and to whom could he negotiate it
except to the inhabitants of that country in which he resided?” At
the same time he intimated that the king might have laid hands on
the debt and sued on the indorsement during the war, and that the
indorsee could only sue because of the peace. He also laid stress on
the fact that the drawer and drawee were both British subjects, and
slurred over the fact that the indorsing was a contract. His dictum
therefore does not indicate that he really differed from the general
understanding, namely that what was laid down by Lord Stowell
for the maritime jurisprudence of England is true of English law
generally. And the contract in Antoine v. Morshead, coming as it
fairly did within the exception of commercia belli, was not in my
opinion one on which the king could have sued or on which the remedy
was suspended.
Westlake, vol. 2, pp. 51, 52.
Apart from trading ventures, moreover, all contracts or other trans-
actions entered into after the war between persons respectively resi-
dent in British and enemy territory are treated as illegal and void.
So, in Willison v. Patteson and others (7 Taunt. 439)—where, during
war between Great Britain and France, a French citizen had drawn
on the defendants, who were British subjects, certain bills of ex-
change, which were endorsed to the plaintiff, a British subject resi-
dent in France, and subsequently accepted by the defendants—it was
held that no action would lie on the bills, even though brought after
the restoration of peace.
A similar invalidity will attach to contracts and transactions
which, even though not themselves entered into with alien enemies,
are yet incidental to or in furtherance of such illegal trading or
intercourse. So, in Potts v. Bell (8 T. R. 548), it was held that a
policy of insurance entered into between British subjects, in relation
to goods to be brought from the enemy country on behalf of the
assured, was illegal and void as being in furtherance of trade with
the enemy; and this even though the loss alleged under the policy
arose from enemy capture.
Cobbett, pt. II, p. 77.
312
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Contracts for relief of war-prisoners.
Although the original contract in this case [Antoine v. Morshead,
6 Taunt. 237.] was made between British subjects, yet the indorse-
ment to the plaintiff and the subsequent acceptance by the defendant.
involved a dealing during war between enemies. The decision must,
therefore, be taken to rest on the special necessities of prisoners of
war; and to be intended to provide a means whereby alien enemies
may supply prisoners' wants, with an assurance of being able to sue
on their contracts after the return of peace. It has, in fact, been
treated, in American cases in which it has been cited, as having this
character; and as establishing an exception to the general rule of
non-intercourse. Prisoners of war detained in England are also at
liberty to sue in the English courts on contracts of service entered
into by them during the war.
Cobbett, pt. II, p. 83; Crawford v. The William Penn, 3 Wash. C. C.
48+, Scott, 577; Naria 1. Hall, 2 Bos. & P. 236.
Ransom contracts.
The decision in this case Ricord v. Bettenham, 3 Burr. 1734.]
seems to accord with the practice followed in most other sys-
tems of municipal law that recognize ransom contracts. It was
also followed by the English Courts in Cornu v. Blackburne
(2 Doug. 641), where it was held that neither the death of the
hostage, nor the capture of the original captor—although without an
appropriation of the ransom bill-put an end to the contract. In
Anthon v. Fisher (2 Doug. 649. n.), indeed, it was held that an alien
enemy could not sue in person even on a ransom contract; the proper
course being to commence a suit in the first instance against the ship
and goods, or failing this against the master in the name of the
hostage. But this view is now generally reprobated, on the ground
that if the contract is lawful it must be held to suspend the character
of enemy quoad hoc.
Both the granting of ransom contracts by captors, and the entering
into ransom contracts by vessels captured, are often forbidden by
municipal law. Under the British system the practice of giving
ransom contracts is now regulated by the Naval Prize Aci, 1864.
This empowers the Crown in Council, as it may deem expedient,
either to prohibit or to allow, either wholly or in certain cases or sub-
ject to conditions, the entering into contracts for the ransom of ships
or goods belonging to British subjects taken as prize by the enemy;
and places all such contracts under the exclusive jurisdiction of the
Court of Admiralty. Nor is a British captor at liberty to grant
ransom to an enemy vessel, except in cases similarly allowed by Order
in Council. In Maissonnaire v. Keating (2 Gall. 325) the practice
of ransom was extended by the United States Courts to the case of a
LIMITATION OF POWER TO CONTRACT.
313
.
neutral vessel which had been captured by one belligerent on the
ground of carrying contraband to the other but released on giving a
ransom bill; Story, J., holding that inasmuch as the cargo would
probably have been liable to condemnation the ordinary rules of
ransom must be deemed to apply.
Cobbett, pt. II, p. 84; The Hoop, 1 C. Rob. 201; Furtado r. Rogers, 3
B. & P. 191.
Contracts made with alien enemies during the existence of war.
The general rule is that contracts made with' alien enemies during
the existence of war, and particularly (if not exclusively) transac-
tions which amount to trading with the enemy, are illegal and void.
6. The law is clear that one of the immediate consequences of the
commencement of hostilities is the interdiction of all commercial
intercourse between the subjects of the States at war without the
licence of their respective Governments. The prohibition ap-
plies to all persons domiciled within the hostile State. If a war
breaks out, a foreign merchant carrying on trade in a belligerent
country has a reasonable time allowed him for transferring himself
and property to another country. If he does not avail himself of the
opportunity, he is treated, for the purposes of the trade, as a subject
of the Power under whose dominion he carries it on, and as an enemy
of those with whom that Power is at war" (per De Villiers, C. J., in
The “Mashona,” 1900, 17 Buchanan, 135). The Trading with the
Enemy Proclamation, No. 2, dated 9th September, 1914, applies such
prohibition during the present war to any one who is for the time
being in British territory (Article 5).
The authorities are numerous, but the following may serve as
examples:
In Potts v. Bell, 1800, 8 T. R. 548, it was expressly laid down that
trading with an enemy, without the King's licence, is illegal. In that
case it was held to be illegal for a subject in time of war, without the
King's licence, to bring, even in a neutral ship, goods from an enemy's
port which were purchased by his agent, resident in the enemy's coun-
try, after the commencement of hostilities, although it did not appear
that they were purchased from an enemy.
In Willison v. Patteson, 1817, 7 Taunt. 439, it was declared that
no contract made with an alien enemy in time of war can be en-
forced in a Court of British judicature, although the plaintiff do
not sue until the return of peace, and although such plaintiff be an
English-born subject, resident in the hostile country. The facts
were these: The defendant, a British subject resident in England,
having in his hands the proceeds of A, an alien enemy, A drew a bill
on the defendant, payable to his own order, and indorsed it to the
plaintiff, an English-born subject resident in the hostile territory,
110678–1921
314
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
who sued on the bill after peace was restored. It was held that he
could not recover.
For other English authorities, reference may be made to Brandon
v. Nesbitt, 1794, 6 T. R. 23; to the note at the end of Clementson v.
Blessing., 1855, 11 Exch. 133; and to the judgments in Janson v.
Driefontein Consolidated Mines, Limited, 1902, A. C. 484. The fol-
lowing is a Scottish case:-
In Johnston & Wright v. Goldsmid, 15th February, 1809, F. C., a
set of bills was drawn by a foreigner on a Leith firm before a declara-
tion of war. They were accepted after the declaration, but before it
was known to the drawee. They were subsequently indorsed to in-
dorsees, who took them in the knowledge of the declaration of war.
A second set of bills drawn on the Leith firm was indorsed, unac-
cepted, to the same indorsee by an alien enemy, and was taken by the
indorsees in the knowledge that war had been declared. It was held
that the indorsees, having received the bills in the knowledge that they
were enemy property, were not entitled to demand payment from
the Leith firm.
There are certain exceptions to this general rule of law.
(1) Contracts entered into with alien enemies in time of war
are valid in favour of and enforceable by a person who
has an express or implied licence from the Crown to
make them (The "Hoop," 1799, 1 Ch. Rob. 196; Vandyck
v. Whitmore, 1801, 1 East, 475; see also section 10,
infra). But if the other party to the contract has not
such a licence, the contract may, under certain circum-
stances, be impeachable quoad him on the ground of his
being an alien enemy.
(2) Ransom contracts were formerly held valid. Thus, in
Ricord v. Bettenham, 1765, 3 Burr. 1734, an action upon
a ransom bill given in time of war was sustained in time
of peace. But no such action was maintainable in time
of war (Anthon v. Fisher, Dougl. 649 n.). In Furtado
v. Rogers, 1802, 3 Bos. & P. 191, it was observed by Lord
Alvanley that no action was even maintainable upon a
ransom bill in a Court of common law until the case of
Ricord v. Bettenham, 3 Burr. 1734; 1 Bl. 563"; and that
he had “the authority of Sir William Scott for saying
that in the Admiralty Court the suit was always insti-
tuted by the hostage. The case of Ricord v. Bettenham,
however, tended to show that such an action might be
maintained in the Courts of common law at the suit of
an alien enemy. In consequence of this a similar action
was brought in Cornu v. Blackburn, Dougl. 641, and
after argument the Court of King's Bench held that it
1
LIMITATION OF POWER TO CONTRACT.
315
might be sustained. But in Anthon v. Fisher, Dougl.
649, 650, in notis, the contrary was expressly determined
upon a writ of error in the Exchequer Chamber.”
By a statute in 1782, 22 Geo. III. c. 25, ransom contracts were made
illegal and void. Under section 45 of the Naval Prize Act, 1864 (27
& 28 Vict. c. 25), however, the Crown may, by Order in Council,
still allow British subjects to ransom their property. A contract of
ransom in violation of the regulations of such Order renders the
contractor liable to a penalty not exceeding £500.
(3) Contracts of necessity entered into during hostilities by
prisoners of war are valid, and may be sued upon after
peace has been declared.
Thus, bills of exchange drawn by a prisoner of war for his own
subsistence constitute an exception to the general rule by which all
contracts made between subjects of belligerent States during the ex-
istence of war are void (Nelson v. Trigg, 3 Tenn. Cas. 733—an Ameri-
can decision).
In Antoine v. Morshead, 1815, 6 Taunt. 237, a bill of exchange
was drawn on the defendant in England by his father, a British sub-
ject detained prisoner in France during war. It was payable to other
British subjects also detained there. It was afterwards indorsed to
the plaintiff, a French subject, who was a banker at Verdun, and ac-
cepted by the defendant. The plaintiff was held entitled to recover
on the bill after the declaration of peace. Gibbs, C. J., observed
“ This is no bill of exchange drawn in favour of an alien enemy, but by one
subject in favour of another subject, upon a subject resident here, the two
first being both detained prisoners in France; the drawer might legally draw
such a bill for his subsistence. After the bill is so drawn, the payee indorses ·
it to the plaintiff, then an alien enemy. How was he to avail himself of the
bill, except by negotiating it, and to whom could he negotiate it, except to
the inhabitants of that country in which he l'esided?”
In Willison v. Patteson, 1817, 7 Taunt. 439, Gibbs, C. J., again
referred to the above case as an exception to the general rule invali-
dating contracts made during war with alien enemies, because founded
on necessity. This is also the only possible way of reconciling the
case of Daubuz v. Morshead, 1815, 6 Taunt. 332, with the general prin-
ciple that a party cannot sue in trust for an alien enemy (Brandon v.
Nesbitt, 1794, 6 T. R. 23). There a bill of exchange had been drawn
by a prisoner of war in France, and accepted by his son in England,
the defendant, and indorsed to the plaintiff, who, though only a trustee
for an alien enemy, was held entitled to recover on the bill.
The decision in Sparenburgh v. Bannatyne, 1797, 1 Bos. & P. 163,
might be explained in the same way, although it was put by the judges
on a different ground. In this case a native of a neutral State was
taken in an act of hostility on board an enemy's ship, and brought to
316
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
England as a prisoner of war. It was held that he was not disabled
from suing, while in confinement, for wages for working a ship home,
a service which he had rendered at the request of an officer of the
Crown. The judges did not regard him as an alien enemy, a view
which, in all probability, would not now be adopted. But the pe-
culiar circumstances of the case explain not only why the contract
was held valid, but also why it was held enforceable during hostili-
ties. The plaintiff had in fact what could be considered to amount
to a licence from the Crown to make the contract (see also Maria v.
Hall, 2 Bos. & P. 236; Rex v. Depardo, 1 Taunt. 26; Bazett v. Meyer,
4 Taunt. 324, 834).
The three exceptions enumerated above seem to be well established
in law. But possible additional exceptions have either been, or may
here be, suggested.
(4) The principle that enemy character is determined by domi-
cile--a doctrine applied, as was pointed out in section 6,
supra, to the case of British subjects who have a civil
or commercial domicile in a neutral country, and also
to the case of British subjects or neutrals residing or
trading in enemy territory—would logically lead to the
conclusion that alien enemies who have a civil or com-
mercial domicile in a neutral State or in this country,
should not be deemed to be such. Indeed, some judicial
observations, e. g., that of Lord Lindley in Janson v.
Driefontein Consolidated Gold Mines, Limited, 1902,
A. C. 505, might lead one to adopt this view, which is
taken by Dr. Phillipson (Effect of War on Contracts,
p. 36), but the English decisions do not go so far.
*
In Usparicha v. Noble, 1815, 13 East, 332, a native Spaniard,
domiciled here in time of war, between this country and Spain, was
held to be entitled to sue upon a policy of insurance of goods shipped
by him in a neutral vessel to certain ports in Spain. But he had
been licensed in general terms by the Crown to carry on this trade.
In Alcinous v. Nigreu, 1854, 4 E. & B. 217, the contract had not
only been concluded with, but also performed by, an alien enemy
domiciled here before the outbreak of hostilities. Yet it was held to
be unenforceable by him during the existence of war.
In Alciator v. Smith, 1812, 3 Camp. 244, the plaintiff, an alien
enemy, had been long resident in this country, had obtained a licence
under an Act which had expired, and had registered her abode at a
police office in conformity with another statute. Yet she was held
not entitled to sue, even although she had obtained a new licence
after her cause was at issue.
LIMITATION OF POWER TO CONTRACT.
317
1
From these cases it would appear that at common law if a contract
is made in time of war with an alien enemy residing or trading in
this country, such contract, howeyer otherwise valid it may be, cannot
be enforced by a suit at the instance of the alien enemy during hos-
tilities, unless he has the express or implied licence of the Crown to
reside or trade here.
G
*
Contracts falling within this fourth exceptional class, if other-
wise valid, are enforceable by British subjects even at common law
(Robinson & Co. v. Continental Insurance Company of Mannheim,
reported in The Times of 17th October, 1914).
The Supreme Court of the United States, in the case of McVeigh
v. United States, 11 Wall. 259, after citing Albretcht v. Sussman,
2 Ves. & B. 324, Bacon's Abridgment and Story's Equity Pl., sec-
tion 53, for authority, says, “Whatever may be the extent of the dis-
ability of an alien enemy to sue in the Courts of the hostile country,
it is clear that he is liable to be sued '” (J. B. Scott's Cases on Inter-
national Law, p. 545, note). In Dorsey v. Kyle, 1869, 96 American
Decisions, 617, it was also declared that an alien enemy may be
sued at law though he may not sue, as neither reason nor policy for-
bids judicial proceedings against an alien enemy in favour of a
friendly citizen. Sir Frederick Pollock seems to be of the same
opinion (Principles of Contract, 8th edition, p. 100), and points out
that even alien enemies could enforce such contracts after the war
has ceased. It is also possible that contracts made with alien enemies
resident or trading in this country are enforceable by them during the
continuance of war by such modes of self-redress as lien or re-
tention and appropriation of payments.
*
*
However this may be, a British subject would incur technical diffi-
culties in pursuing a remedy in such cases against an alien enemy
divided from him by “the line of war” by reason of the difficulty
in serving process, &c.
The language of Gray, J., in the American case of Kershaw v.
Kelsey, 1869, 97 American Decisions, 124, suggests a possible limi-
tation of the above nature to the rule of non-intercourse. In de-
livering judgment he stated, as a result of an exhaustive review of the
principal English and American authorities, that “the law of nations,
as judicially declared, prohibits all intercourse between citizens of
the two belligerents which is inconsistent with the state of war be-
tween their countries; and this includes any act of voluntary submis-
sion to the enemy or receiving his protection, as well as any act or
contract which tends to increase his resources, and every kind of
trading or commercial intercourse, whether by transmission of goods
318
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
or money, or by orders for the delivery of either between the two
countries, directly or indirectly, or through the intervention of third
persons or partnerships, or by contracts in any form looking to or
involving such transmission, or by insurances upon trade by or with
the enemy. Beyond the principle of these cases, the prohibition has
not been carried by judicial decision. At this age of the
world, when all the tendencies of the law of nations are to exempt
individuals and private contracts from injury or restraint in conse-
quence of war between their Governments, we are not disposed to
declare such contracts unlawful as have not been heretofore adjudged
to be inconsistent with a state of war."
· Trotter, pp. 17–25.
You are forbidden to consent to an agreement for ransom.
French Naval Instructions, 1912, sec. 152.
Willison v. Patteson and Others, Y Taunton, 439.—Gibbs, C. J.,
said: “I think my brother Lens has put this case on the true
ground, and it is fit that the Court should not pass by the diffi-
culties which he has attempted to throw in their way. He truly
states that it does not appear on the facts of this case when the
cambrics were remitted to this country, nor whether the plaintiff
was conscious of the consideration upon which these bills of exchange
were accepted. It therefore must be taken that he knew only that,
and all that, which these bills, on the face of them, communicate.
The law laid down by the defendant's counsel, that a trading with
an enemy is illegal my brother Lens does not deny. The defendant
further contends that if the subjects of another State are permitted
in time of war to draw bills on this country, to get those bills accepted,
and to negotiate them, and if the indorsee is permitted to recover on
those bills, that is as direct a trading and communication with this
country as possibly can be, and therefore is prohibited. Against this
doctrine it is urged that this is not such a trading or communication
as is prohibited, and that it is so ruled by the case of Antoine v.
Morshead. Whether in arguing that case the counsel for the defend-
ant urged that no contract could exist, I do not know; I believe that
he did; but I know that that was the only consideration which made
the Court hesitate on that case; but they decided it on the ground
that it was an excepted case, and did not come within the general rule.
The bill was drawn by an English subject on an English subject, and
we thought that circumstance took it out of the ordinary rule. We
adverted to the circumstance that the bill was indorsed to a foreigner,
but it was not sued on until the time of peace. We also adverted to
the principle which the Court of King's Bench adopted in Kensing-
ton v. Inglis, that that which was rendered lawful by the license was
lawful in all its consequences; and as it was legal to carry goods from
LIMITATION OF POWER TO CONTRACT.
319
the island A to the island B, an insurance on these goods was also
lawful. So we there held that the end being legal, the means, without
which it could not be effected, were also legal. (His lordship here
read the report of the judgment in that case, 6 Taunton, 239.) We
referred ourselves to the legal purpose for which those bills were
drawn, and which was the support of our fellow subjects in France.
That case, therefore, was decided as an exception to the general rule.
By the general rule I cannot help thinking that an alien enemy resi-
dent in France has no right to draw on this country for a fund due to
him here; for that I take to be the very sort of communication which
the policy of the law meant to prevent. It is impossible to say that
the plaintiff was not conusant of the purpose for which these bills
were drawn; for on the very day after the drawing he attempts to
take to himself by indorsement those funds, which is the very species
of communication that it is the purpose of the law to prevent. I come
very unwillingly to this conclusion, seeing nothing dishonest in the
transaction."
Trotter, pp. 152–153.
United States' court decisions.
Contracts made in aid of rebellion were invalid.1
Contracts not in aid of rebellion, but for a legitimate purpose,
although by an insurgent or insurgent body, were generally held
valid.2
G. G. Wilson in 40 Cyc. p. 327.
1 Alabama.--Ware v. Jones, 61 Ala. 288,
Georgia.—Branch v. Mechanics' Bank, 52 Ga. 525; Manufacturers' Bank v. Ellis, 51
Ga. 154 ; Gullatt v. Thrasher, 42 Ga. 429.
Massachusetts.--Stevenson v. Payne, 109 Máss. 378.
Mississippi.-New Orleans, etc., R. Co. V. State, 52 Miss. 877.
Missouri.-Carson v. Hunter, 46 Mo. 467, 2 Am. Rep. 529.
North Carolina.-- Cronly v. Hall, 67 N. C. 9, 12 Am. Rep. 597.
Tennessee.-Conlry v. Burson, 1 Heisk. 145 ; State Bank v. Woodson, 5 Coldw. 176.
Texas.--Roquemore v. Alloway, 33 Tex. 461 ; Algier v. Black, 32 Tex, 168.
West Virginia.—Wright v. Graham, 4 W. Va. 430.
United States.--Keith v. Clark, 97 U. S. 454, 24 L. ed. 1,071 ; Thomas v. Richmond, 12
Wall. 349, 20 L. ed. 439; Confiscation Cases, 6 Fed. Cas. No. 3,097, 1 Woods 221; Nord-
linger v. Vaiden, 18 Fed. Cas. No. 10,296; Sprott v. U. S., 8 Ct. CI. 499 [affirmed in 20
Wall. 459, 22 L. ed. 371).
See 48 Cent. Dig. tit. “War," § 72 et seq.
2 Georgia.-Atkinson v. Central Georgia Agricultural, etc., Co., 58 Ga. 227.
North Carolina.-McKesson v. Jones, 66 N. C. 258.
Tennessee.-Bund v. Perkins, 4 Heisk. 364.
Teras.--House v. Soder, 36 Tex. 629; Kottwitz V. Alexander, 34 Tex. 689.
United States.—Briggs v. U. S., 143 U. S. 346, 12 S. Ct. 391, 36 L. ed. 180 [reversing
25 Ct. C1. 126] ; Coogan v. U. S., 7 Ct. Cl. 510; Pollard v. U. S., 4 Ct. C1. 328
[affirmed in 154 U. S. 577 appendix, in 19 L. ed. 620.]
See 48 Cent. Dig. tit. “ War," $ 72 et seq.
As to the transfer of a note see Morris v. Poillon, 50 Ala. 403.
As to a lease see Kershaw v. Kelsey, 100 Mass. 561, 97 Am. Dec. 124, 1 Am. Rep. 142.
The mere possibility that the enemy will benefit by a contract does not invalidate it.
(Walker 1. Jeffries, 45 Miss. 160.)
Contracts for care of sick are valid. (Selma v. Mullen, 46 Ala. 411 ; Raynes v. Smith,
2 Duv. (Ky.) 430 ; Fottrell v. German, 5 Coldw. (Tenn.) 580, 95 Am. Dec. 442.)
1
320
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
During the late rebellion, a citizen and resident of Mississippi made
a lease of a cotton plantation there to a citizen of Massachusetts, who
was then in Mississippi. The lessee took possession and paid rent
under the lease, but was afterwards driven off by rebel soldiers. In
an action for the rent in arrear, the Supreme Court of Massachusetts
held the lease valid. The court say, " that the law of nations, as
judicially declared, prohibits all intercourse between citizens of the
two belligerents which is inconsistent with the state of war between
their countries; and that this includes any act of voluntary submission
to the enemy, or receiving his protection; as well any act or con-
tract which tends to increase his resources; and every kind of trading,
or commercial dealing or intercourse, whether by transmission of
money or goods, or orders for the delivery of either, between the two
countries, directly or indirectly, or through the intervention of third
persons or partnerships, or by contracts in any form looking to or
involving such transmission, or by insurances upon trade with or by
the enemy. Beyond the principle of these cases the prohibition has
not been carried by judicial decision.” Kershaw v. Kelsey, 100 Mass.
561, 572. In this case all the authorities are reviewed. Inter alia
the remarks in Jecker v. Montgomery, 18 How. 110, and Hanger v.
Abbott, 6 Wall. 532, are said to be obiter dicta, and the Ouachita
Cotton, 6 Wall. 521, is explained as a case of a sale of merchandise
which was strictly an act of commercial intercourse. Perhaps similar
explanations would suffice for Coppel v. Hall, 7 Wall. 542; United
States v. Grossmayer, 9 Wall. 72 (appointment of an agent during the
war); Hennen v. Gilman, 20 La. An. 241; Graham v. Merrill, 5
Coldw. 622. Among the strongest cases against the doctrine of
Kershaw v. Kelsey are Hyatt v. James, 2 Bush (Ky.), 463; Phillips
v. Hatch, 1 Dillon, 571; Filor's Case, 3 Ct. of Cl. 25; iii. 256, n. 1.
[Kershaw v. Kelsey is cited with apparent approval in Montgomery
r. United States, 15 Wall. 395, which also holds that the line of divi-
sion between friendly and hostile country is that of actual military
control, and not that of states which may be friendly or hostile. See
also United States v. Lapène, 17 Wall. 601. It has been held that
the question of legality is to be determined by the legal domicile of
the parties. Hence where a person went from the Union into the
Rebel lines, and traded there, but did not change his domicile, and
afterwards returned to the Union lines, held, such trading was illegal
and void. Mitchell v. United States, 21 Wall. 350; Desmare v. U. S.
93 U. S. 605; Quigley v. United States, 13 Ct. of Cl. 367. This, it is
to be noted, is a different test from that stated in Kershaw v. Kelsey,
and it seems that both tests are to be applied before a contract is
held valid. If the latter were the only test, two persons retaining
their domiciles in the same country might trade across the lines.
Either country will recognize as valid contracts entered into
LIMITATION OF POWER TO CONTRACT.
321
wholly between parties domiciled and resident in one of the coun-
tries, and which do not contemplate any trading across the lines.
Conrad v. Waples, 96 U. S. 279; Mitchell v. United States, supra;
Brown v. Gardner, 4 Lea, 145. This was held in Conrad v. Waples,
-supra, though the property sold was within the enemy's lines. But
see dissenting opinion of Clifford, J., in Burbank v. Conrad, 96
U. S. 291, 293.]
Kent, vol. 1, pp. 80, 81, note.
The citizens of one belligerent state are incapable of contracting
with the citizens of the other belligerent state.
Moore's Digest, vol. 7, p. 244, citing Scholefield v. Eichelberger, 7 Pet.
586.
During the occupation of New Orleans by the Federal forces dur-
ing the rebellion, a loyal citizen of that place, describing himself as
the agent of a certain planter, who was an enemy, residing on a plan-
tation in the rebellious region, agreed to sell to a British subject,
domiciled in New Orleans, a crop belonging to the said planter, and
described as his (the planter's) property. It was ruled that the sale
was void.
It appeared that the loyal citizen had, prior to the war; made ad-
vances to the planter, and it was argued that he had a lien on the
property and a power to sell it for the repayment of the advances,
and that the sale ought to be regarded as his, and not as a sale by the
planter. The court held, however, that the real parties to the trans-
action were the vendee and a public enemy, at the same time observ-
ing that there was nothing in the case inconsistent with the doctrine
that a resident in the territory of one belligerent may have in times of
war an agent residing in the territory of the other belligerent, to
whom his debtor may pay a debt, or deliver property in discharge
of it, such payments or deliveries involving no intercourse between
enemies.
Moore's Digest, vol. 7, p. 244, citing Montgomery v. United States, 15
Wall. 395.
.66
The fact that seven months after a ten years' lease was made, a
general order," from the military department of Louisiana, forbade
the several bureaus of the municipal government of the city, created
by military authority, from disposing of any of the city property for
a term extending beyond a period when the regular civil government
of the city might be established, was held not to have invalidated the
Jease.
Moore's Digest, vol. 7, pp. 244, 245, citing New Orleans v. Steamboat
Company, 20 Wall. 387.
322
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In May, 1862, after New Orleans came into the possession of the
United States forces, a conveyance of real property in that city,
for value, was made between persons who were at the time within
the Confederate lines, and who were active supporters of the Con-
federate cause in the legislative and military branches. It was
argued that the conveyance was inoperative and void, on the ground
that as the parties were at the time “engaged in the rebellion against
the United States, and were within the enemies' country," they could
not lawfully transfer title to property situated within the Federal
lines. “But," said the court, “we do not think the position at all
tenable. The character of the parties as rebels or enemies did not
deprive them of the right to contract with and to sell to each other.
As between themselves, all the ordinary business between people of
the same community in buying, selling, and exchanging property,
movable and immovable, could be lawfully carried on, except in cases
where it was expressly forbidden by the United States, or where it
would have been inconsistent with or have tended to weaken their
authority. It was commercial intercourse and correspondence be-
tween citizens of one belligerent and those of the other, the engaging
in traffic between them, which were forbidden by the laws of war
and by the President's proclamation of nonintercourse. So long as
the war existed, all intercourse between them inconsistent with actual
hostilities was unlawful. But commercial intercourse and corre-
spondence of the citizens of the enemy's country among themselves
were neither forbidden nor interfered with so long as they did not
impair or tend to impair the supremacy of the national authority
or the rights of loyal citizens. No people could long exist without
exchanging commodities, and, of course, without buying, selling, and
contracting. And no belligerent has ever been so imperious and arbi-
trary as to attempt to forbid the transaction of ordinary business by
its enemies among themselves. No principle of public law and no con-
sideration of public policy could be subserved by any edict to that
effect; and its enforcement, if made, would be impossible. .
“ The sale in the case at bar can only be impeached, if at all, by
reason of the situation of the property within the Federal lines. And
from that circumstance it would not be impeached, unless the sale, if
upheld, in some way frustrated the enforcement of the right of
seizure and confiscation possessed by the United States. ... A
conveyance in such case would pass the title subject to be defeated,
if the Government should afterwards proceed for its condem-
nation. And to declare this liability was the object of the provision
in the confiscation act, enacting that all sales, transfers, and convey-
ances' of property of certain designated parties made subject to seiz-
ure should be null and void. The invalidity there declared was lim-
ited and not absolute. It was only as against the United States that
LIMITATION OF POWER TO CONTRACT.
323
the transfers of property liable to seizure were null and void. They
were not void as between private parties, or against any other party
than the United States. This was held in the case of Corbett v. Nutt,
reported in the 10th of Wallace. ...
“This case is much stronger than that of Fairfax's Devisee v.
Hunter's Lessee, reported in the 7th of Cranch, which received great
consideration by this court. There a devise to an alien enemy resident
in England, made during our Revolutionary war by a citizen of Vir-
ginia, and there residing at the time, was sustained, and held to vest a
title in the devisee which was good until office found.
“If an alien enemy can, by devise or purchase from a loyal citizen
or subject, take an estate in the country of the other belligerent and
hold it until office found, there would seem to be no solid reason for
refusing a like efficacy to a conveyance from one enemy to another
of land similarly situated. A different doctrine would unsettle a
multitude of titles passed during the war between residents of the
insurrectionary territory temporarily absent therefrom whilst it was
dominated by the Federal forces."
Moore's Digest, vol. 7, pp. 245–247, citing Conrad 2. Waples (1877),
96 U. S. 279, 286–290.
ܕ•
W., a resident of Memphis, purchased, on April 12, 1865, in Mobile,
from B., a resident of that city, both cities being then in the occupancy
of the national forces, cotton which was then in the military lines of
the insurgent forces in Alabama and Mississippi, the inhabitants
whereof had been declared to be in insurrection. Between June 30
and December 1 of that year, a portion of the cotton, while it was in
the hands of the planters from whom it had been originally pur-
chased by the Confederate Government, the agent of which had sold
it in Mobile to B. on the 5th of April, was seized by Treasury agents
of the United States and sold. The proceeds were paid into the
Treasury and W. sued to recover them. It was ruled that his pur-
chase being in violation of law, no right arose therefrom which can
be enforced against the United States.
Moore's Digest, vol. 7, p. 247, citing Walker's Executors v. United
States, 106 U. S. 413.
A bill in equity was filed in a county court in the State of South
Carolina to foreclose a mortgage made by McB. to H. of real estate
in that State. Subsequently one of the parties to the suit obtained
a removal of the cause to the circuit court of the United States for
the district of South Carolina under the act of March 3, 1875. 18
Stat. 470. The apparent ground of the removal of the cause was
that of a diversity in the citizenship of the parties, and, this diversity
324
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
as a case
having been disproved, the circuit court made an order remanding
the case to the State court. From this order an appeal was taken
on the ground among others that when the mortgage was made H.,
the mortgagee, was a citizen of the State of New York, and McB.,
the mortgagor, a citizen of the State of South Carolina, whose people
were then in rebellion against the United States, and consequently
that the suit came within the act of 1865, for the purposes of removal,
arising under the Constitution or laws of the United
States.” The order of the circuit court was affirmed, the court saying:
The fact that a mortgage was made in enemy territory to a loyal
citizen of the United States does not necessarily imply unlawful
intercourse between the parties contrary to the proclamation of the
President of the date of August 16, 1861, 12 Stat. 1262, under the
authority of the act of July 13, 1861, c. 3, § 5, 12 Stat. 257. That
transactions within Confederate lines affecting loyal citizens outside
were not all unlawful was decided in United States v. Quigley, 103
U. S. 595. To make a case for removal the answer should have set
forth the facts which rendered the mortgage void under the non-
intercourse act and the proclamation thereunder. There has been
no attempt to do this."
Moore's Digest, vol. 7, pp. 247, 248, citing Carson 1. Dunham (1887),
121 U. S. 421, 429.
Charles S. Morehead, a citizen of Kentucky, owned two plantations
in Mississippi. In the spring of 1861, when the civil war began, he
was on these plantations, but in the following May or June, when
a long struggle seemed inevitable, he placed one in charge of his
son and the other in charge of an overseer and returned to Kentucky.
It did not appear that afterwards during the continuance of the war
he had any communication with either of those persons. In April,
1862, being then in Kentucky, he sold to another citizen of the State,
in payment of indebtedness, the cotton to be grown on the plantations
during that year; but there was no agreement to transport and de-
liver it across the lines separating the insurrectionary States from
those that adhered to the Union. The year's crop, however, or the
greater part of it, was afterwards captured and sold by the United
States forces and the proceeds paid over or accounted for to the
Treasury.
Though at the time the sale, or assignment, as it is termed in
the act of Congress [June 4, 1888, 25 Stat. 1075, c. 348], was made
. the late civil war was flagrant, there was no rule of law arising
from the existence of hostilities between the different sections of the
country which in any respect impaired the validity of the transaction.
[The court then quoted Conrad v. Waples, 96 U. S. 279, 286, supra.]
66
LIMITATION OF POWER TO CONTRACT.
325
“ The property in this case [Conrad v. Waples] was real estate,
but we do not perceive how that fact would alter the validity of a
transaction, if it could be affected by the character of the parties.
If residents of the enemy's country may contract for property situated
within it, there would seem to be no objection to similar transactions
by persons residing outside of the Confederate lines and adhering to
the National Government, so long as no intercourse or connection is
kept up with the inhabitants of the enemy's country. As stated in
the case from which we have cited, it was commercial intercourse
and correspondence between citizens of one belligerent and the other,
and the engagement in traffic between them, leading to the transmis-
sion of money or property from one belligerent country to the other,
which was forbidden.
“There was, therefore, nothing in the sale of the cotton on the plan-
tations or of cotton to be raised thereon, there being no agreement
respecting its movement across the border of the contending sections,
which brought the transaction within the prohibitions of any rule of
international law or the proclamations of the President of the United
States in 1861. (12 Stat. 257, 1262; 13 Stat. 731.)
Those who
may
desire to examine the decisions of the courts as to
the nature and extent of the prohibitions upon transactions between
subjects of countries at war, or between subjects of the same country
respecting property situated in the enemy's country, will find in the
opinion of the supreme judicial court of Massachusetts, in Kershaw v.
Kelsey, 100 Mass. 561, the subject ably and exhaustively considered,
with an analysis of the most important decisions of the English and
American courts."
Moore's Digest, vol. 7, pp. 248, 249, citing Briggs 1. United States
(1892), 143 U. S. 346, 351, 353.
66
The act of July 17, 1862 (12 Stat. 589), to suppress insurrection and
for other purposes, had no effect on sales or transfers of the estate and
property of persons in rebellion after September 23, 1862, except as
against the United States. As against that Government, the transfers
of property liable to seizure were null and void, but they were not void,
as between private parties nor against any other party than the United
States.
Moore's Digest, vol. 7, p. 250, citing Williams 1. Paine (1897), 169
U. S. 55, 75.
It is within the power of a citizen within the United States lines to
give to an enemy within the enemy's lines an evidence of debt which
shall be valid on the return of peace.
Moore's Digest, vol. 7, p. 250, citing Hart v. United States, 15 Ct.
Cl. 414.
326
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In 1862, A, domiciled in Athens, Ala., agreed to sell B, of Nashville,
Tenn., a plantation, with the personal property thereon, situated in
Tennessee. At the time of the agreement of sale, Athens, Nashville,
and the plantation were all within the lines of the military forces of the
United States. At the time the deed was made Athens and the planta-
tion were within the Confederate lines, as was the place of B's resi-
dence at the time. Held, that neither contract nor deed was invalid.
Moore's Digest, vol. 7, p. 250, citing Brown v. Gardner, 4 Lea (Tenn.)
145. See Ware v. Jones (1878), 61 Ala. 288.
A contract made in 1862 by a county court within the Confederate
lines, and under the control of the government of Virginia at Rich-
mond, is valid and binding on such county (now forming a part of the
State of West Virginia), where such contract was made under the Vir-
ginia statute of May 9, 1862, authorizing counties to purchase salt to
be disposed of to the people, and the salt was actually delivered.
Moore's Digest, vol. 7, p. 250, citing Stuart, Buchanan & Co. v. County
of Greenbrier, 16 W. Va, 95.
Contracts made by prisoners of war in the enemy's country for the
purpose of obtaining subsistence are binding.
Moore's Digest, 1906, vol. 7, p. 250, citing Crawford v. The William
Penn. 3 Wash. C. C. 484.
SUSPENSION OR DISSOLUTION OF CONTRACT.
It is also a further consequence of the inability of the subjects of
the two states to commune or carry on any correspondence or business
together, that all commercial partnerships existing between the sub-
jects of the two parties prior to the war are dissolved by the mere
force and act of the war itself; though other contracts existing prior
to the war are not extinguished, but the remedy is only suspended,
and this from the inability of an alien enemy to sue or to sustain,
in the language of the civilians, a persona standi in judicio.
Kent, vol. 1, p. 82.
The distinction as to contracts made before the war seems to be
that suggested by the text; that those contracts are dissolved which
cannot be performed except in the way of commercial intercourse.
The William Bagaley, 5 Wall. 377, 407; and cases infra; 1 Duer
Ins. Lect. 4, note 2 ad fin. p. 478; De Wahl v. Braune, 1 Hurlst. &
N. 178, 182. Thus the relation of principal and agent between one
in the North and another in the South was not suspended or dissolved
during the rebellion. Monsseaux v. Urquhart, 19 La. An. 482. See
Robinson v. International Life Ass. Co., 42 N. Y. 54; United States
v. Grossmayer, 9 Wall. 72, 75. Nor were contracts of insurance.
Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 614, 634; New York
Life Ins. Co. v. Clopton, 7 Bush, 179. On the other hand, a charter-
party by which an Italian ship (neutral property in the subsequent
war) was to proceed from England to Odessa, and there be furnished
with a cargo by a British subject, was held to be dissolved by the
breaking out of war between England and Russia, as it prima facie,
at least, involved trading with the enemy. Esposito v. Bowden, 7 El.
& Bl. 763; Barrick v. Buba, 2 C. B. N. S. 563; Reid v. Hoskins, Avery
v. Bowden, 6 El. & Bl. 953.
Kent, vol. 1, p. 81, note.
All commercial partnerships, existing between the subjects of the
two parties prior to the war, are dissolved by the mere force and act
of the war itself; though other contracts, existing prior to the war,
are not extinguished, but the remedy is only suspended, and this
from the inability of an alien enemy to sue, or to sustain, in the
language of the civilians, a persona standi in judicio.
Halleck, p. 358.
327
328
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In ex parte Boussmaker (1806, 13 Ves. 71] (on a petition to be ad-
mitted to prove a debt under a commission of bankruptcy, which the
commissioners refused to admit, upon the objection that the credi-
tors applying to prove were alien enemies), Lord Chancellor Erskine
said: “If this had been a debt arising from a contract with an alien
enemy, it could not possibly stand, for the contract would be void.
But if the two nations were at peace at the date of the contract, from
the time of war taking place the creditor could not sue; but the con-
tract being originally good, upon the return of peace the right would
revive. It would be contrary to justice, therefore, to confiscate this
dividend. Though the right to recover is suspended, that is no rea-
son why the fund should be divided among the other creditors.
The policy, avoiding contracts with an enemy, is sound and wise;
but when the contract was originally good, and the remedy is only
suspended, the proposition that therefore the fund should be lost is
very different.”
Should the rights under such contracts, however, have been con-
fiscated, the right of action will not be so restored. The grounds of
extinction are the impossibility of performance brought about by
new conditions, and the fact that an alien enemy has no persona
standi in judicio. But if an enemy be put in the king's peace by means
of a flag of truce or other act of public authority, he thereby ac-
quires the capacity to sue even during the war. Where contracting
parties had agreed that no action should be maintainable unless
brought within twelve months after the occurrence of a specified
event, it was held that as outbreak of war made the parties enemies,
the plaintiff was relieved from his disability to sue within the twelve
months.
Phillipson, pp. 70–72; Gist 2. Mason, .1 Term. R. 86; Semmes 0. Hart-
ford Ins. Co., 13 Wall. 158.
As to contracts made before the war and which are not dissolved
by the war, the doctrine of the suspension of an enemy subject's right
of action is laid down in Ex parte Boussmaker by Erskine, L. C.,
who allowed the claim of an enemy creditor in a bankruptcy
to be entered, so that the fund might not be shared amongst the
remaining creditors, but reserved the dividend. Of course, a con-
tract entered into prior to the war will remain valid in every respect
if one or both of the belligerents should waive their strict rights.
Executory contracts whose terms require fulfillment during the
war are avoided by the outbreak of hostilities, e. g., a contract of
insurance previously effected is made void should the property cov-
ered become subsequently stamped with enemy character. And a
similar doctrine was applied in America in a case of commercial
partnership.
Phillipson, p. 72; Griswold v. Waddington, 16 John. 459.
SUSPENSION OR DISSOLUTION OF CONTRACT.
329
4
Contract of affreightment.
The performance of a contract of affreightment is conditional on
there being no prevention from any of the enumerated contingencies,
including "the king's enemies," and sometimes also the restraint of
princes and rulers.” If fulfilment is impossible without engaging in
intercourse with the enemy, the contract is ipso facto dissolved. A
declaration of war may at once render the contract void. All goods
in the enemy country are vested with enemy character; hence, in the
absence of a special licence, exportation becomes unlawful, and the
agreement relating thereto null. Accordingly, if a shipowner car-
ries a cargo under such circumstances as amount to trading with the
enemy, an action to recover freight so earned will not be entertained.
If enemy goods are seized on board à neutral vessel, the captor must
ordinarily pay full freight to the neutral carrier, but not so if the
goods are contraband. If an enemy vessel is seized with a neutral
cargo on board, the captors may take the goods to their destination,
and receive the freight thereon. But should restoration of both ship
and cargo be effected without unlivery, the original contract is not
dissolved, and the parties are put into their original position.
A mere apprehension that the place of loading is about to become
hostile is not sufficient to cause an abandonment of the contract; the
restraint must be actual and operative, and not merely expectant
and contingent. On the other hand, "an apprehension of capture
founded on circumstances calculated to affect the mind of a master
of ordinary courage, judgment, and experience, would justify delay";
hence no action for damages would lie in case of deviation in the
voyage or detention of the vessel in neutral waters in order to avoid
imminent risk of capture. Apart from the understood exceptions,
should any circumstances arise which would render the lawful ful-
fillment of the contract impossible, e.g., in case of a port being block-
aded, it is dissolved by force majeure, on the principle that “lex non
cogit ad impossibilia.” An embargo does not operate in this way;
it merely effects a temporary suspension of the contract and the lia-
bilities thereon for the time being; and on its removal the contract
is restored.10 But should it continue so long, or is laid under such
circumstances, as in fact to defeat the object of the voyage, the con-
tract would be dissolved. 11
Phillipson, pp. 76–78.
1 Reiū v. Hoskins, 26 L. J. Q. B. 5.
2 Avery v. Bowden (The Lebanon), 25 L. J. Q. B. 49; 26. ibid. 3.
3 Esposito v. Bowden, 27 L. J. Q. B. 217; 24 ibid. 10.
4 Muller v. Gernon, 3 Taunt. 394.
5 The Copenhagen, 1 Rob. 289; The Hoop, ibid. 196.
8 The Mercurius, 1 Rob. 288; The Commercen, 1 Wheat. 382.
? Atkinson v. Ritchie, 10 East, 530 ; Osgood v. Groning, 2 Camp. 466.
8 Cf. T'he San Roman, 3 A. & E. 583; 5 P. C. 301. See also The Patria, 3 A. & E. 436;
The Express, ibid. 597 ; The Heinrich, ibid. 424.
9 Baily v. De Crespigny, 4 Q. B. 180.
10 Hadly v. Clarke, 8 T. R. 259.
11 Geipel v. Smith, 7 Q. B. 404.
110678—19 -22
330
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Insurance of enemy goods.
According to Continental practice, insurance of enemy goods
against capture at sea by the insurer's own State was prohibited from
early times. This was the case in France, Spain, Italy, the Nether-
lands and Germany (with the occasional exceptions made in favour
of the Hanse Towns). Thus, the Guidon de la Mer (a collection of
maritime rules dating from the end of the sixteenth century, and
almost entirely adopted in a French ordinance of 1681) says insur-
ance of enemy property is not legitimate in time of war: “En temps
de guerre ou d'hostilité, les sujets de Sa Majesté ne pourront prester
ou supposer leur nom pour charger denrées appartenant à ses enne-
mis." At the time of the outbreak of the wars of the French Revo-
lution the principle was universally accepted. Bynkershoek dis-
tinctly affirms the unlawfulness of insuring ships or cargo which are
liable to capture by the law of war: .. Naves mercesque, quas
jure belli occupare et publicare licet, quaccumque demum fuerint,
assecurare non licet.” 1. In this country the practice was for a long
time different. Till 1800 there had been no decision as to its ille-
gality. In that year it was held, in the case of Potts v. Bell, that the
illegality of insurance was a natural consequence of the unlawfulness
of all commercial intercourse. To allow such contracts would be
detrimental to national policy. In 1802, in Furtado v. Rodgers,
any contract of insurance, whether made before the war or after
the war, was declared illegal and void. “When a British subject
insures against captures, the law infers that the contract contains an
exception of captures made by the government of his own country.'
The House of Lords in 1902 re-asserted the principle, but limited its
application to losses of the King's enemies during actual hostilities,
and not to acts done in contemplation of war.3
But practice as to such insurance varied at different times, and still
varies in different places. Thus, as to Dutch and German practice, a .
Continental writer says: “La législation hollandaise ne contient
aucune disposition qui ait pour effet d'interdire l'assurance de la
propriété ennemie; à Hambourg aucun assureur ne songerait á se
soustraire à l'obligation de payer l'indemnité d'un sinistre, sous pré-
texte que l'objet assuré appartient à un ennemi." 4
No action can be maintained on a policy on an alien enemy's prop-
erty, even though of British manufacture and exported from this
country. An insurance effected on behalf of an alien enemy is void,
though the goods be shipped before the outbreak of hostilities.
2
6
3
1 C. xxi, p. 200.
2 B. & P. 191, 200.
Janson v. Driefontein Mines Co., A. C. 484.
4 E. Friquet, “ Traités des Avaries Communes et Particulières," vol. 1, p. 17.
5 Bristow v. Towers, 6 T. R. 35.
o Brandon v. Nesbit, ibid. 23.
SUSPENSION OR DISSOLUTION OF CONTRACT.
331
Should war commence after the occurrence of a loss insured against,
the rights of the assured are held in abeyance till the conclusion of
peace. In accordance with the French view, a state of war does not
necessarily nullify policies of insurance affected prior to the com-
mencement of hostilities. It merely requires suspension of the con-
tract, but should a loss occur after the outbreak of war, no claim for
indemnity is maintainable where an enemy subject is concerned. "En
ce qui concerne le contrat d'assurance, l'état de guerre n'atteint pas
les polices faites avant sa survenance; elle suspend l'exécution du
contrat; mais, comme le constate un jurisconsulte, si le sinistre sur-
vient après l'ouverture des hostilités, il n'y a pas de droit à l'in-
demnité puisqu'il s'agit d'un sujet ennemi; l'assurance est annulée
dans ses effect utiles."
All insurances on goods, trades, and voyages prohibited by law or
proclamation are invalid; 8 but where it is clearly established that
there was no intention to evade a prohibition the voyage will prob-
ably not be considered illegal, though a penalty may be enforced. If
a voyage be one and entire, any illegal act at the commencement or in
the course of the voyage renders the whole illegal. Engaging with-
out permission in the enemy's privileged trade being unlawful, rela-
tive insurances are illegal. No insurance can be made on ransom-
money so long as ransom from the enemy is under prohibition. In-
surances affected on licensed trades is legal;5 thus where a Spaniard
domiciled in Great Britain at a time of war between this country
and Spain, and having received a general license from the King to
ship goods in a neutral vessel to certain Spanish ports, Lord Ellen->
borough held that such commerce is in every respect fully legalized,
either for the benefit of the licensee himself or of his agents and cor-
respondents, even though residing in enemy territory. For, to hold
that a person who obtained such license was debarred from effecting
a policy of insurance on the trade in question would be to convert the
license itself into an instrument of fraud and deception.
Crown, in licensing the end, impliedly licenses all the ordinary legiti-
mate means of obtaining that end.
Whatever commerce of
this sort the Crown has thought fit to permit .... must be regarded
by all the subjects of the realm, and by the courts of law, when any
question relative to it comes before them, as legal, with all the conse-
quences of its being legal. .. It will not be contended to be
illegal to insure a trade carried on in contravention of the laws of :
66 The
1 Flindt v. Waters, 15 East, 260, 266.
2 E. Nys,
“ Le Droit International," Vol. III, p. 150, and referring to the authority of
E. Friquet, “ Traité des Avaries Communes et Particuliéres," vol. 1, p. 20.
3 Johnson V. Sutton, 1 Doug, 254,
4 Atkinson v. Abbott, 11 East, 135.
5 See decision of Lord Ellenborough in Usparicha v. Noble (1811), 13 East, 332.
. ' .
332
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
State at war with us, and in the furtherance of the policy of our
country and its trade. I
If part of a cargo is licensed and consequently legalized, and part
unlicensed, the insurance will be valid in respect of the licensed por-
tion, unless the contract be indivisible; 2 and this will apply not only
where the difference is one of kind but also where there is a difference
of quantity in the goods.3
Similarly in French practice, a licence to trade implies permission
to insure even enemy property. “S'il y a concession de licences ou de
sauf-conduits, le commerce est permis, et, par conséquent, il peut y
avoir assurance de la propriété ennemie." 4
Phillipson, pp. 78–83.
Life insurance contracts.
With regard to contracts of life insurance, where the assured and
the Company became enemies, it has been decided in American Courts
that the suspension of payment of the annual premiums, caused by
the operation of the rule of non-intercourse, does not necessarily dis-
solve the contract; for the insured is held entitled to sue after the
conclusion of peace for the equitable value of his policy. In 1876, a
majority of the Supreme Court of the United States laid down the
following principles: (1) A policy of life assurance which stipulates
for the payment of an annual premium by the assured, with a condi-
tion to be void on non-payment, is not an insurance from year to year
like a common fire policy; but the premiums constitute an annuity, the
yhole of which is the consideration for the entire assurance for life;
and the condition is a condition subsequent, making, by its non-
performance, the policy void. (2) The time of payment in such a
policy is material, and of the essence of the contract; and a failure
to pay involves an absolute forfeiture, which cannot be relieved
against in equity. (3) If a failure to pay the annual premium be
caused by the intervention of war between the territories in which the
insurance company and the assured respectively reside, which makes
it unlawful for them to hold intercourse, the policy is nevertheless
forfeited if the company insist on the conditions; but in such case the
assured is entitled to the equitable value of the policy arising from
the premiums actually paid. (4) This equitable value is the differ-
ence between the cost of a new policy and the present value of the
premiums yet to be paid on the forfeited policy when the forfeiture
occurred, and may be recovered in an action at law or a suit in equity.
1 The principle here laid down was adopted in various subsequent cases; e. g., Flindt v.
Scott, Flindt v. Crokatt, on appeal (1814), 5 Taunt. 674; Bazett v. Meyer (1814), ibid.,
824, overruling Menett v. Bonham (1812), 15 East, 477.
? Pieschell v. Allnutt, 4 Taunt, 792; Butler V. Alnutt, 1 Stark, 222.
3 Keir v. Andrade, 2 Marsh, 196.
4 E. Nys. op. cit., vol. III, p. 150, referring to Friquet, op. cit., vol. 1, p. 20.
SUSPENSION OR DISSOLUTION OF CONTRACT.
333
The doctrine of revival of contracts, suspended during the war, is
based on considerations of equity and justice, and cannot be invoked
to revive a contract which it would be unjust or inequitable to revive
as where time is of the essence of the contract, or the parties cannot
be made equal. (5) The average rate of mortality is the fundamental
basis of life assurance, and this is subverted by giving to the assured
the option to revive their policies or not after they have been sus-
pended by war ... it would be unjust to compel a revival against
the company.
The doctrines of this case was re-affirmed the following year.
Phillipson, pp. 85–87; New York Life Ins. Co. v. Statham, 93 U. S. 24;
New York Life Ins. Co. v. Davis, 95 U. S. 425.
As regards contracts entered into before [Melville v. De Wold
(1855), 4 E. & B. 844; Esposito v. Bowden (1857), 7 E. & B. 763; Ex
parte Alcinous v. Nigreu (1854), E. & B. 217; the Charlotta (1814),
1 Dodson, 390.] the outbreak of war, a distinction must be drawn:-
(a) Executory contracts are avoided, both parties being released from
performance. (b) Contracts executed before the outbreak of war and
not requiring to be acted upon during the war are suspended until
after the conclusion of peace. (c) Executed contracts which require
acting upon during the war are dissolved.
Partnerships [Griswold v. Waddington (1819), 16 Johnson, 438;
Esposito v. Bowden (1857), 7 E. & B. 763.] with alien enemies are
dissolved.
Oppenheim, vol 2, p. 137.
Contracts of affreightment and insurance.
A contract of affreightment [Esposito v. Bowden (1857), 7 E. & B.
763. See also the Teutonia (1870), L. B. 4 Privy Council, 171.] must
not be fulfilled; therefore English ships must not load or unload goods
in an enemy port.
Contracts of insurance of enemy vessels and goods are so to be
construed as to contain a proviso that the assurance shall not cover
any loss occurring during a war between the country of the assurer
and the country of the assured. [Brandon v. Curling (1803), 4 East,
410; but see also Potts v. Bell (1800), 8 D. & E. 548; Furtado v.
Rodgers (1802), 3 P. & B. 191; Kellner v. Le Mesurier (1803), 4 East,
396; Gamba v. Le Mesurier (1803), 4 East, 407.]
Oppenheim, vol. 2, p. 138.
Life insurance policies.
A life insurance policy, New York Life Insurance Co. v. Stathem,
v. Symes, and v. Buck (1876), 93 United States, 24; New York Life
Insurance Co. v. Davis (1877), 95 United States, 425.] entered into
334
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
before the outbreak of war conditioning the payment of yearly pre-
miums on pain of forfeiture of the policy, is forfeited ipso facto by
the outbreak of war because the payment of the premium is now
prohibited. After the conclusion of peace, however, the insured may
claim the equitable value of the policy arising, at the time of the
outbreak of war, from the premiums actually paid.
Oppenheim, Fol. 2, p. 138.
Differing interpretations of article 23h, Hague Regulations on land war-
fare.
It must be specially observed that, if the continental interpreta-
tion of article 23 (h) of the Hague Regulations were not contra-
dicted by Great Britain and the United States of America, both
countries would be compelled to alter their Municipal Laws in so far
as these declare such contracts as have been entered into with alien
enemies before the outbreak of war dissolved, void, or suspended.
Article 23 (h) distinctly enacts that it is forbidden to declare ex-
tinguished or suspended the rights of the nationals of the adverse
party. Since, however, as stated above in sec. 100a, Great Britain
and the United States of America uphold a different interpretation,
this article does not concern their Municipal Laws respecting trading
with alien enemies.
Oppenheim, vol. 2, p. 138.
2
The general rule is that the remedy on obligations ex contractu or
ex delicto, as between persons who become enemies, is suspended, but
revives on the return of peace. Limitation does not run during the
war. On the other hand, though the principal of a debt survives,
interest, even if agreed upon, will not run whilst hostilities continue,
except “when an agent appointed to receive the money resides within
the same jurisdiction with the debtor” or “when one of several
joint debtors resides within the same country with the creditor, or
with the known agent of the creditor." 4
In certain cases, however, war annuls obligations.
(1) Contracts, executed or executory, between persons who become
enemies are dissolved by the war if time is of their essence, and
provided the contracts involve trade or intercourse between the
parties during the war.
A policy of life-insurance with periodical premiums is an execu-
tory contract of this nature. If any of the premiums fall due during
the war, the contract of assurance is held to have been dissolved at
the moment war broke out, but on the conclusion of peace the assured
1 Hanger v. Abbott, 6 Wall. 532 ; Ex parte Boussmaker, 13 Ves. Jun. 71.
2 Hoare v. Allen, 2 Dall. 102.
& Ward v. Smith, 7 Wall. 452 ; U. S. v. Grossmayer, 9 Wall., 72.
4 Paul et ux. Extx. of Dean v. Christie, 4 Harris and McHenry, 161.
SUSPENSION OR DISSOLUTION OF CONTRACT.
335
can recover the surrender value of the policy at the time of its
determination. 1
To take the case of an executed contract, a man who loses his dog
offers by advertisement half a pound out of his Christmas pudding
on Christmas Day, 1907, to anyone who will bring the animal safe
home; a Russian subject, knowing of the offer, brings the dog safe
home on the 1st January, 1907. On the 2nd of January following,
war breaks out between England and Russia. If the war lasts till
the 31st December, the contract will be annulled. If, on the other
hand, peace is concluded on, say, the 20th December, the contract
will not be affected.
(2) Contracts the fulfilment of which during the war will give
the enemy aid or comfort in the prosecution of the war cannot be
enforced on the return of peace. Thus it was held that a British
underwriter on French property in time of peace is not liable for
a loss occasioned by capture by the British fleet during hostilities
which commenced between Great Britain and France after the policy
had been effected.2
(3) On the outbreak of war, all commercial partnerships existing
between the citizens of the hostile States are ipso facto dissolved.**
War implies a cessation of all commercial relations between the
citizens of the contending States, and agreements like partnerships,
that necessarily involve continual intercourse, cannot stand.
On the principles laid down by the Supreme Court in New York
Life Ins. Co. v. Stathem, however, it is conceived that on the return
of peace the alien partner would be entitled to sue for the value of
his share in the partnership at the moment it was dissolved.
Negotiable instruments, and in particular bills of exchange and
promissory notes, and so also acceptance, indorsement, and accept-
ance supra protest of bills of exchange, are contracts in writing,
and are therefore governed by the general rules as to written con-
tracts. An enemy holder can no more sue on a bill of exchange than
on any other contract, but it is conceived that if he negotiates the
bill to a neutral, even during hostilities, the latter could sue on it in
his own name. It would, of course, be open to the enemy holder to
wait till the end of the war before presenting a bill payable after
sight, for payment or in the case of a bill not payable after
sight, for payment or acceptance. The duration of the war would
no doubt be a "reasonable time" within the meaning of Secs. 40, 41,
and 45 of the Bills of Exchange Act. The holder would not, how-
ever. be entitled to any damages for dishonour or non-acceptance
1N. Y. Life Ins. Co. V. Stathem, 93 U. S. 24.
2 Gamba v. Le Mesurier, 4 East, 407.
3 Griswold v. Waddington, 15 Johns, 57.
4 Foster v. Jolly, 1 C. M. and R. 703.
336
SELECTED TOPICS. CONNECTED WITH LAWS OF WARFARE.
beyond the amount of the bill, nor would interest run whilst the war
lasted.1
Any contract on a bill of exchange between enemies, effected during
the war, is of course void, and a holder with notice, even if otherwise
capable of suing, will not be a holder in due course under Sec. 29 of
the Bills of Exchange Act.
"A cheque is a bill of exchange drawn on a banker payable on
demand” 2 and is affected by war in the same manner as any other
negotiable instrument.
To cross a cheque with the name of a banker is in effect a direction
to the drawee to pay the cheque to that banker only, as the holder's
agent, with the rider that payment is not to be made to the holder
personally. Whether, therefore, a crossed cheque held by an enemy
can become the basis of an action during war is a question which
must, it is conceived, be primarily determined by the status of the
bank whose name is written across the cheque and not of the holder.
We have here what is clearly an inchoate agency "to collect and
preserve but not to transmit money or property,” 3 and the same
principles apply as in the case of other contracts of agency.
Latifi, pp. 51-54.
Decisions in the United States.
The doctrine that when a contract made previous to the war with
one who becomes an enemy subject requires to be further acted on,
not merely the remedy on it is suspended but it is dissolved, because
“it is unlawful to have communication or trade with an enemy," was
laid down in the state of New York and applied to commercial part-
nerships by Chancellor Kent, in Griswold v. Waddington, 16 John-
son 438, Scott 504. It was applied by the Supreme Court of the
United States, a minority dissenting, to policies of life insurance;
and the insured was held entitled to sue after the peace for the
equitable value of his policy, “as of the day when the first default
occurred in the payment of the premium by which the policy became
forfeited," with interest“ from the close of the war”: New York Life
Insurance Company v. Stathem, 93 U. S. 24, Scott 512. Its applica-
tion to the relation of landlord and tenant was refused in the state
of Massachusetts, and the landlord was allowed to sue after the close
of the war for the unpaid rent: Kershaw v. Kelsey, 100 Mass. 561,
Scott 535.
It has been held in the United States that a statute limiting the
time within which an action can be brought does not run while the
ול
1 Hoare v. Allen, 2 Dall. 102,
2 Bills of Exchange Act, 1882, sec. 73.
3 Small's Admr. v. Lumpkins Exx, et als. 28 Grattan, 832.
Scott's Cases, p. 538.
SUSPENSION OR DISSOLUTION OF CONTRACT.
337
right of action was suspended by war: Hanger v. Abbott, 6 Wal-
lace 532, Scott 500. And this seems reasonable, but a contrary opinion
has been expressed by English writers of high authority.
Westlake, vol. 2, p. 52.
Prior to this decision [Furtado v. Rogers, 3 Bos. & P. 191], some
doubt had existed as to whether an insurance of enemy property
was not valid, provided it had been entered into prior to the outbreak
of war. But any such doubt was set at rest by the present decision,
which makes it clear that such insurances, whenever entered into, are
void as contrary to public policy. And the same principle would
apply to other contracts or transactions that tend to the assistance or
the aid of the enemy, whenever and with whomsoever entered into.
By 17 & 18 Vict. c. 123, moreover, even the purchase of enemy stock
by a British subject is made a misdemeanour.
Cobbett, pt. II, p. 68; Brandon v. Curling, 4 East, 410; Brandon v.
Nesbit, 6 T. R. 23; Cf. R. v. Hensey, 1 Burr, 642, 650.
The contract of partnership belongs to that class of contracts which
are abrogated by war. The reason for this is that, where the parties
are divided by the line of war and all commercial intercourse between
them prohibited, neither the rights nor the duties incident to it can
be properly exercised or discharged; whilst it can not well be sus-
pended, owing to the impossibility of taking up the joint business
after the war at the precise point at which it was abandoned. Never-
theless, in Matthews v. McStea (91 U. S. 7) the Supreme Court of
the United States, whilst fully recognizing the general effect of war
on commercial intercourse, held that inasmuch as such intercourse
was permissible with the consent of the sovereign authority, and
inasmuch as in that particular war a precise date for the cessation
of intercourse had been fixed by the sovereign authority, the partner-
ship then in question could not be deemed to have been dissolved
prior to that date, and was therefore subsisting at the time of the
transaction which formed the subject-matter of the suit. Even when
a partnership is dissolved by war, it would seem that, on the return
of peace, an alien partner may recover the value of his share in the
partnership as at the date at which it was dissolved.
The saine principle is equally applicable to other contracts and
relations that would involve a continuance of commercial intercourse
or correspondence between persons domiciled in the countries of the
respective belligerents. In New York Life Insurance Co. v. Stathem
(93 U. S. 24; Scott, 512), the premiums on a policy of life insurance
had been duly paid until the outbreak of the civil war; but in con-
sequence of that event and of the parties being divided by the line of
338
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
war, the premium due in December, 1861, was not paid; whilst the
assured died in 1862. In the Court below it was held that the con-
tract was merely suspended by war. On appeal to the Supreme Court
it was held that the doctrine of suspension did not apply to executory
contracts in which time was material; that in contracts of insurance
a strict adherence to the stipulated times of payment must be re-
garded as material, for the reason that the business of life insurance
was founded on the law of averages, which could not be interfered
with without deranging the security of the business; and that the
policy therefore came to an end on the first default. At the same time
it was held that inasmuch as failure to pay was due to the outbreak
of war and not to any fault of the assured, the representatives of the
latter were entitled to recover the equitable value of the policy; just
as in a contract for the sale of property to be paid for by instalments,
the contract would be abrogated by war, although after the war the
vendor would be held accountable to the purchaser for any payments
previously made. On the other hand, in Semmes v. Hartford In-
surance Co. (13 Wall. 158), it was held that where a policy had been
entered into and a loss incurred prior to the war, an action thereon
might be maintained after the war; notwithstanding a condition that
such action must be brought within a stipulated time, so long as a
compliance with this condition was prevented by the war. And
similar rules would probably be followed by the English Courts.
Cobbett, pt. II, pp. 70–71.
Negotiable instruments.
Negotiable instruments, and, in particular, bills of exchange and
promissory notes, are governed by similar principles, subject only to
such qualifications as flow from their negotiable character. If made
before the war, and between persons domiciled in the countries of the
respective belligerents, they are, in the hands of an alien enemy, in-
capable of being sued on during the war, but will revive on the restora-
tion of peace; although no interest would appear to be recoverable in
respect of the period covered by the war. But if transferred to a
neutral, there would appear to be nothing to prevent the latter from
suing and recovering thereon, even during the war, in his own name.
If made during the war they are, as we have seen, illegal in their in-
ception and incapable of legal effect, even if transferred to a neutral
or British subject, save in cases specially excepted under the jus belli.
Cobbett, pt. II, p. 87.
Contracts of affreightment.
A contract of affreightment made prior to the war, between persons
who subsequently come to occupy a hostile relation to each other, will,
if executory, be abrogated by war; whilst even if executed in part or
whole it will be suspended, as to its further legal effects, during the
SUSPENSION OR DISSOLUTION OF CONTRACT.
339
war.
Even if not made between persons who subsequently become
enemies, it will be abrogated by war, if it involves either the shipowner
in an obligation to carry his vessel to an enemy port; or the charterer
in illegal intercourse with the enemies of his country. Such contracts,
if made during the war, between persons occupying a hostile relation
to each other, are illegal and void.
Cobbett, pt. II, p. 87.
Contracts of insurance.
In general, contracts of insurance, of whatever kind, if made before
war, and the loss on which accrued before war, will merely be sus-
pended in their legal effects by the outbreak of war between the States
of the insurer and the assured, and can be sued on after the return of
peace. But an insurance, even though made prior to the war, will not
be deemed to avail against losses incurred by the British capture of
enemy property. A contract of insurance entered into during the war
with an alien enemy, or in relation to enemy property, will also be
invalid, except when it relates to a trade carried on by license of the
Crown, or to property which, although situated in the enemy country,
belongs to a British subject or corporation. A contract of insurance,
even when made between British subjects, will be invalid if made in
furtherance of trade with the enemy. Contracts of life and fire in-
surance, in so far as they involve periodical payments, which cannot
strictly be made between persons divided by war, would probably be
treated as annulled by war; although subject probably to a right on
the part of the assured to recover the equitable value of the policy as
from the time of abrogation. This difficulty might, however, be got
over by a stipulation providing for the appointment in the country of
the assured of an agent for the purpose merely of receiving—but not
of transmitting—the premiums during the war.
Cobbett, pt. II, p. 88.
Contracts of agency.
A contract of agency already subsisting between persons who after-
wards become enemies, and conferring a general authority on the
agent to buy and sell and enter into other transactions on behalf of
the principal will, like a partnership, be abrogated by war.
But a
limited agency, if created before the war, and if it does not involve
any continuance of intercourse or the transmission of money or prop-
erty during the war, might, it seems, be lawfully continued.
Cobbett, pt. II, p. 88.
Contracts of partnership.
A contract of partnership already subsisting between persons who
afterwards become enemies, is, as we have seen, abrogated by war; on
the ground that the disabilities and restrictions created by war are
340
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
inconsistent with a due exercise of the rights or a proper discharge of
the duties incident to partnership, and that the relation is one which
from its very nature is incapable of suspension; although such abro-
gation would probably be subject to a right of the alien partner on
the termination of the war to recover the equitable value of his share
at the time of dissolution.
Cobbett, pt. II, p. 89.
Executed contracts.
Commercial Relations-1. Personal and Contractual Rights--a. In
General. Although by the old and strict rule debts due to citizens of
the enemy state became confiscable by the outbreak of the war this
rule has become nearly obsolete and war in general only suspends as
between hostile parties executed contracts.?
G. G. Wilson in 40 Cyc. pp. 320, 321.
A
Executory contracts.
On the other hand executory contracts with an alien enemy are
usually dissolved by the declaration of war;2 and those subject to
the jurisdiction of one belligerent are forbidden to enter into new
contracts with those subject to the jurisdiction of the other.
1 Thus, the Civil war, with respect to parties to contracts who were in hostility to each
other, had the effect to suspend the judicial enforcement of contracts, but their obligation
did not cease, and the enemy's right of action revived with the restoration of peace.
Spencer v. Brower, 32 Tex. 663, 5 Am. Rep. 254 ; Semmes v. City F. Ins. Co., 13 Wall.
(U. S.) 158, 20 L. ed. 490 [affirming 21 Fed. Cas. No. 12,651, 6 Blatchf. 445). So in case
of an implied contract for use and occupancy. Kiersted v. Orange, etc., R. Co., 54 How.
Pr. (N. Y.) [reversed on other grounds in 69 N. Y. 343, 25 Am. Rep. 199).
Effect on contracts generally see Graves v. Miami Steamship Co., 29 Misc. (N. Y.) 645,
61 N. Y. Suppl. 115; Hamilton v. Eaton, 3 N. C. 83; Ware v. Hylton, 3 Dall. (U. S.) 199,
1 L. ed. 568 ; Alcinous v. Nigreu, 4 E. & B. 217, 1 Jur. N. S. 16, 24 L.J. Q. B. 19, 3
Wkly. Rep. 25, 82 E. C. L. 217, 119 Eng. Reprint 84; Wolff v. Oxholm, 6 M. & S. 92, 18
Rev. Rep. 313, 105 Eng. Reprint 1177 ; EQ. P. Boussmaker, 13 Ves. Jr. 71, 9 Rev. Rep.
142, 33 Eng. Reprint 221.
Debts of a state due to the enemy and the interest thereon are not confiscable. Case
of the Silesian Loan, 2 Martens Causes Célèbres 97.
If a foreign power takes prisoner an enemy, and thereby obtains possession of docu-
ments establishing his right to a debt due from another to him in his private and not
sovereign or political capacity, the prisoner is entitled to relief. Coorg (Rajah) v. Fast
India Co., 29 Beav. 300, 7 Jur, N, s, 350, 30 L, J. Ch. 226, 3L. T. Rep. N. S. 646, 9
Wkly. Rep. 247, 54 Eng. Reprint 642.
2 Isaacs u. McGrath, 2 McCord (S. C.) 26 ; Isaacs vi McGrath, 1 Nott & M. (S. C.) 563 ;
Esposito v. Bowden, 4 E. & B. 763; 3 Jur. N. S. 1209, 27 L. J. Q. B. 17, 5 Wkly. Rep.
732, 90 E. C. L. 763, 119 Eng. Reprint 1430.
The doctrine of revival of contracts suspended during the war is based on considera-
tion of equity, and justice will not be invoked to revive a contract which it would be
unjust or inequitable to revive, as in the case of an inventory contract where time is the
essence, or the parties cannot be made equal. New York L. Ins. Co. v. Statham, 93
U. S. 24, 23 L. ed. 789.
3 Rice v. Shook, 27 Ark. 137, 11 Am. Rep. 783; Perkins v. Rogers, 35 Ind. 124, 9 Am.
Rep. 639: Nelson v. Trigg, 3 Tenn. Cas. 733 ; Bishop v. Jones, 28 Tex. 494 ; White v.
Burnley, 20 How. (U. S.) 235, 15 L. ed. 886 ; Scholefield v. Eichelberger, 7 Pet. (U. S.)
586, 8 L. ed. 793; Habricht v. Alexander, 11 Fed. Cas. No. 5,886, 1 Woods, 413; Williams
v. Mobile Say. Bank, 29 Fed. Cas. No. 17,729, 2 Woods, 501.
SUSPENSION OR DISSOLUTION OF CONTRACT.
341
As the performance may be physically impossible: the judicial
means of enforcement frequently are not operative.
G. G. Wilson in 40 Cyc. p. 321.
Agency
The relation of principal and agent existing between residents of
hostile jurisdictions at the beginning of the war is terminated? or
suspended to the extent that further discharge of the duties of the
agency is contrary to the policy or interests of one or both of the bel-
ligerents.
But war does not necessarily, and as mere matter of law, revoke
every agency, and when the agency does not require forbidden acts,
and the assent of the principal or his subsequent ratification actually
appears, or may justly be inferred, the authority of the agent will be
held to continue until otherwise terminated.4
1Brown v. Delano, 12 Mass. 370 (no action on a bill of lading) ; Grinnan v. Edwards,
21 W. Va. 347 (failure to make payments on a contract to buy land).
The claims of creditors of this country against subjects of Great Britain which existed
prior to the American revolution were not destroyed by the dissolution of the govern-
ment, although the judicial means of compelling payment in this country were for the
time lost. Jones v. Walker, 13 Fed. Cas. No. 7,507, 2 Paine, 688. .
2 Georgia.—Howell v. Gordon, 40 Ga. 302.
Kentucky.--Buford v. Speed, 11 Bush, 338.
North Carolina.--Blackwell v. Willard, 65 N. C. 556, 6 Am. Rep. 749.
Tennessee.-Conley v. Burson, 1 Heisk. 145.
United States.--Tait v. New York L. Ins, Co., 23 Fed. Cas. No. 13,726, 1 Flipp. 288.
See 48 Cent. Dig. tit. “War," § 27.
3 Howell v. Gordon, 40 Ga. 302; Conley .v. Burson, 1 Heisk. (Tenn.) 145; Small v..
Lumpkin, 28 Gratt. (Va.) 832; Fretz v. Stover, 22 Wall. (U. S.) 198, 22 L. ed. 769; U. S.
v. Grossmayer, 9 Wall. (U. S.) 72, 19 L. ed. 627 ; Douglas v. U. S., 14 Ct. Cl. 1.
Accounting between principal and agent is suspended till the close of the war. Cald-
well v. Harding, 4 Fed. Cas. No. 2,302, 1 Lowell, 326.
4 District of Columbia.-Williams v. Paine, 7 App. Cas. 116 [affirmed in 169 U. S. 55,
18 S. Ct. 279, 42 L. ed. 658).
Georgia.--Bartow County v. Newell, 64 Ga. 699.
Kansas.--Fisher v. Krutz, 9 Kan. 501.
Kentucky.-Buford v. Speed, 11 Bush, 338.
Louisiana.-Monsseaux v. Urquhart, 19 La. Ann. 482.
Massachusetts.-Kershaw v. Kelsey, 100 Mass. 561, 97 Am. Dec. 124, 1 Am. Rep. 142..
New York.-Hubbard v. Matthews, 54 N. Y. 43, 13 Am. Rep. 562; Sands v. New York
L. Ins. Co., 50 N. Y. 626, 10 Am. Rep. 535 [affirming 59 Barb. 556] ; Robinson v. Inter-
national L. Assur. Co., 42 N. Y. 54, 1 Am. Rep. 400; Buchanan v. Curry, 19 Johns. 137,
10 Am. Dec. 200.
Tennessee.---Darling v. Lewis, 11 Heisk. 125.
Texas.--Rodgers v. Bass, 46 Tex. 505.
Virginia.-Small v. Lumpkin, 28 Gratt. 832; Hale v. Wall, 22 Gratt. 424; Manhattan
L. Ins. Co. v. Warwick, 20 Gratt. 614, 3 Am. Rep. 218.
United States.-Williams v. Paine, 169 U S. 55, 18 S. Ct. 279, 42 L. ed. 658; New
York L. Ins. Co. v. Davis, 95 U. S. 425, 24 L. ed. 453 ; New York L. Ins. Co. v. Statham,
93 U. S. 24, 23 L. ed. 789; U. S. v. Grossmayer, 9 Wall: 72, 19 L. ed. 627 ; Anderson v.
Bank, 1 Fed. Cas. No. 354, Chase 535; Botts v. Crenshaw, 3 Fed. Cas. No. 1,690, Chase
224; Cocks v. Izard, 5 Fed. Cas. No. 2934; Tait v. --ėw York L. Ins. Co., 23 Fed. Cas.
No. 13,726, 1 Flipp. 288; Douglas v. U. S., 14 Ct. Cl. 1; Stoddart v. U. S., 6 Ct. Cl. 340..
342
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Under such conditions the courts have upheld sales by the agent of
the property of the principal, the collection of money due the princi-
pal from an alien debtor by an agent residing in the same country
with the debtor, as well as arrangements with an agent for protec-
tion and safe-keeping of the principal's property, or for defending a
suit against the principal.
The rule of course has no application when the principal and agent
during the war belong to and remain in the same state or country.5
After the restoration of peace the agency will be revived at least
so far as to require the agent to account for what he has received for
his principal during the war.6
G. G. Wilson in 40 Cyc. p. 322.
1 Murrell v. Jones, 40 Miss. 565 ; Pope v. Chafee, 14 Rich. Eq. (S. C.) 69 (holding that
an authority to an agent to receive payment from the sale of land is not revoked by the
subsequent captivity of the principal as a prisoner of war) ; Williams v. Paine, 169 U, S.
55, 18 S. Ct. 279, 42 L. ed. 658; Queyrouze v. U. S., 7 Ct. Cl. 402.
2 New York.-Buchanan v. Curry, 19 Johns. 137 ; 10 Am. Dec. 200; Griswold v. Wad-
dington, 16 Johns. 438; Clarke v. Morey, 10 Johns. 69.
Tennessee.-Darling v. Lewis, 11 Heisk, 125.
Texas. Rodgers v. Bass, 46 Tex. 505; McCormick v. Arnspiger, 38 Tex. 569.
Virginia.-Small v. Lumpkin, 28 Gratt. 832 ; Hale v. Wall, 22 Gratt. 424.
United States.—New York L. Ins. Co. v. Davis, 95 U. S. 425, 24 L. ed. 453; Ward v.
Smith, 7 Wall. 447, 19 L. ed. 207; Anderson v. Cape Fear Bank, 1 Fed. Cas. No. 354,
Chase 535; Botts v. Crenshaw, 3 Fed. Cas. No. 1,690, Chase 224; Conn, v. Penn.,
Fed. Cas. No. 3,104, Pet. C. C. 496; Denniston v. Imbrie, 7 Fed. Cas. No. 3,802, 3 Wash. 396
(all holding that the agent may act and that he will be accountable for any failure to
exercise due care); Stoddart v. U. S., 6 Ct. Cl. 340 (holding that the agent, to save the
money collected, may invest it in property in the hostile country).
See 48 Cent. Dig. tit. “War," § 27.
3 Alabama.-Lyon v. Kent, 45 Ala. 656.
Kentucky.—Buford v. Speed, 11 Bush, 338.
Louisiana.-Monsseaux v. Urquhart, 19 La. Ann. 482.
Missouri.—Mitchell v. Nodaway County, 80 Mo. 257.
United States.-U. S. v. Quigley, 103 U. S. 595, 26 L. ed. 524; Fretz v. Stover, 22
Wall. 198, 22 L. ed. 769 ; Washington University v. Finch, 18 Wall. 106, 21 L. ed. 818;
Cocks v. Izard, 5 Fed. Cas. No. 2,934.
See 48 Cent. Dig. tit. “War," $ 27. .
4 Buford v. Speed, 11 Bush (Ky.) 338; Washington University V. Finch, 18 Wall.
(U. S.) 106, 21 L. ed. 818; McVeigh v. U. S., 11 Wall. (U. S.) 259, 20 L. ed. 80; Cocks
v. Izard, 5 Fed. Cas. No. 2,934. Contra, see Blackwell v. Willard, 65 N. C. 555, 6 Am.
Rep. 749.
5 Shelby v. Offutt, 51 Miss. 128; Murrell v. Jones, 40 Miss. 565 ; Maloney v. Stephens,
11 Heisk. (Tenn.) 738; Queyrouze v. U. S., 7 Ct. Cl. 402.
An agency established between a principal and agent in the same belligerent State is
terminated by the hostile occupation of the portion of the State in which one of the
parties is, to the extent that continuance of the relation involves commerce through the
lines (U. S. v. Lapene, 17 Wall. (U. S.) .601, 21 L. ed. 693 ; Montgomery v. U. S., 15
Wall. (U. S.) 395, 21 L. ed. 97 ; Queyrouze v. U. S. 7 Ct. C1. 402), but not otherwise
(Shelby v. Offutt, 51 Miss. 128; Murrell v. Jones, 40 Miss. 565; Queyrouze v. U. S., 7
Ct. Cl. 402).
Act of Tennessee in 1861 revoking and suspending agencies during war did not apply
to a principal and agent residing in the slave states and outside the federal line. Maloney
V. Stephens, 11 Heisk.
6 Shelby v. Offutt, 51 Miss. 128; Caldwell v. Harding 4 Fed Cas. No. 2302, I Lowell,
326.
738.
SUSPENSION 343
OR DISSOLUTION
DISSOLUTION OF CONTRACT.
OR Insurance contracts.
Insurance. War usually operates only to suspend, and not to
abrogate or annul, contracts between belligerents.
G. G. Wilson in 40 Cyc., p. 322.
4
Partnership contracts.
Partnership contracts are in general dissolved by war.
G. G. Wilson in 40 Cyc. p. 323.
887.
1 Insurance agency not suspended, see Sands v. New York L. Ins. Co., 59 Barb. (N. Y.)
556 [affirmed in 50 N. Y. 626, 10 Am. Rep. 535). But see Tait v. New York L. Ins. Co.,
23 Fed. Cas. No. 13726, 1 Flipp. 288.
War as an excuse for nonpayment of premium, see Fire Insurance, 19 Cyc. 776 text
and note 10.
2 Statham v. New York L. Ins. Co., 45 Miss. 581, 7 Am. Rep. 737 ; Connecticut Mut. L.
Ins. Co. V. Duerson, 28 Gratt. (Va.) 630 ; New York L. Ins. Co. V. Hendren, 24 Gratt.
(Va.) 536.
3 Abell v. Penn. Mut. L. Ins. Co., 18 W. Va. 400.
Insurance on ships or property of the enemy, see Furtado v. Rodgers, 3 B. & P. 191,
6 Rev. Rep. 752; Brandon v. Curling, 4 East 410, 1 Smith K. B. 85, 7 Rev. Rep. 592, 102
Eng. Reprint 888; Gamba v. Le Mesurier, 4 East, 407, 7 Rev. Rep. 590, 102 Eng. Reprint
See also Driefontein Consol. Gold Mines v. Janson (1901], 2 K. B. 419, 6 Com.
Cas. 198, 70 L. J. K. B. 881, 85 L. T. Rep. N. S. 104, 17 T. L. R. 604, 49 Wkly. Rep.
660 [affirmed in [1902] A. C. 484, 7 Com. Cas. 268, 71 L. J. K. B. 857, 87 L. T. Rep.
N. S. 372; T. L. R. 796, 51 Wkly. Rep. 1421 ; 15 Harvard L. Rev. 237.
A contract of insurance between a neutral and a rebel recognized by the neutral's
government as a belligerent is not even suspended. Robinson v. International L. Assur,
Soc., 52 Barb. (N. Y.) 450 [affirmed in 42 N. Y. 54, 1 Am. Rep. 400].
4 Life insurance.-Three distinct views have been taken by courts of last resort as to
the effect of war upon contracts of life insurance. The first is that war does not dissolve
the contract between the parties, but only suspends the performance of it till the restora-
tion of peace. New York L. Ins. Co. v. Clopton, 7 Bush (Ky.) 179, 3 Am. Rep. 290;
Statham v. New York L. Ins. Co., 45 Miss. 581, 7 Am. Rep. 737 ; Sands v. New York L.
Ins. Co., 50 N. Y. 626, 10 Am. Rep: 535; Cohen v. New York Mut. L. Ins. Co., 50 N. Y.
610, 10 Am. Rep. 522; Clemmitt v. N. Y. L. Ins. Co., 76 Va. 355 ; Connecticut Mut. L.
Ins. v. Duerson, 28 Gratt. (Va.) 630 ; New York L. Ins. Co. v. Hendren, 24 Gratt.
(Va.) 536; Mutual Ben. L. Ins. Co. v. Atwood, 24 Gratt. (Va.) 497, 18 Am. Rep. 652;
Manhattan L. Ins. Co. 10. Warwick, 20 Gratt. (Va.) 614, 3 Am. Rep. 218; Hamilton 40.
New York Mut. L. Ins. Co., 11 Fed. Cas. No. 5,986, 9 Blatchf. 234. See 48 Cent. Dig.
tit.“ War," § 28. The second view is that such contracts are utterly anpulled and va-
cated by the failure to pay premiums on account of the war. Dillard v. Manhattan L.
Ins. Co., 44 Ga. 119, 9 Am. Rep. 167. The third view is that while the policy is not
forfeited by a failure to pay premiums during the war, it can be revived after the war
only by the consent of both parties. Under this view, if the company does not elect to
revive the policy, it must pay the assured its equitable value. Abell V. Penn. Mut. L,
Ins. Co., 18 W. Va. 400 ; New York L. Ins. Co. v. Statham, 93 U. S. 24, 23 L. ed. 789.
5 See Partnership, 30 Cyc. 655 text and note 98. See also New Orleans Bank V.
Matthews, 49 N. Y. 12; Leftwich v. Clinton, 4 Lans. (N. Y.) 176.
Except as to matters existing prior to the war a partnership is dissolved by the out-
break of war. Griswold v. Waddington, 16 Johns. (N. Y.) 438.
As to future joint dealings, although not as to winding up the affairs of the firm, war
dissolves the partnership. Douglas v. U. S., 14 Ct. Cl. 1; Cramer v. U. S., 7 Ct. Cl. 302.
By the implied and express permission of the federal government a copartnership
existing between citizens of New York and citizens of New Orleans was not terminated
by reason of the war until the president's proclamation, Aug. 16, 1861, declaring com-
mercial intercourse between the citizens of the insurrectionary states and of the loyal
states unlawful. McStea v. Matthews, 50 N. Y. 166.
344
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Operation. The statute of limitations is suspended during the
period of the war as between the citizens of the belligerent nations.
Judgments against an alien enemy are operative to the extent that
the court has jurisdiction over defendant's property.
G. G. Wilson in 40 Cyc. p. p. 328, 329.
The existence of a state of war affects different contracts in dif-
ferent ways. Some contracts are avoided or dissolved; others are
rendered unenforceable for the time being; others, again, remain
unaffected. The particular conditions of each contract materially
affect the consideration of each case. But the chief circumstances
which determine whether any given contract is valid or void or dis-
solved, enforceable or unenforceable during war, seem to be the
following :-
(i.) The enemy or friendly character of the party or parties
with whom the contract was made.
(ii.) The time when the contract was concluded. Was it
made before the outbreak of war or during its con-
tinuance?
(iii.) The fact that the contract is executory or not.
(iv.) The possibility or impossibility of performance owing
to a state of war.
(v.) The subject-matter of the contract. Was the contract,
for example, one for the exportation of goods of which
the exportation has been forbidden by law?
Trotter, p. 6.
Executed contracts with alien enemies.
An executed contract means, a contract wholly performed on one
side. Where such a contract has been entered into with an alien
enemy before the outbreak of war, and the performance is on his
side, the general rule is that war only suspends his remedy, or, in
other words, he can not sue upon it during the existence of hostili-
ties (Alcinous v. Nigreu, 1854, 4 E. & B. 217; see also note at the end
of Clementson v: Blessing, 1855, 11 Exch. 135).
Thus in Ex parte Boussmaker, 1806, 13 Ves. 71, it was decided that
a dividend payable under a bankruptcy, in respect of a debt due and
payable before the outbreak of war to an alien enemy, ought to be
retained in hand for payment to him on the restoration of peace.
If, however, the alien enemy is residing or trading in this country
with the license of the Crown, he can sue on such a contract during
the existence of war (Wells v. Williams, 1697, 1 Salk. 45), and, as
suggested in section 8 (4), supra, an alien.enemy domiciled here may
have the right, apart from any license, to enforce the contract indi-
rectly by such forms of self-redress as lien, &c.
SUSPENSION OR DISSOLUTION OF CONTRACT.
345
On the other hand, if the performance of the contract is on the
part of a British subject, he can enforce the contract by action during
the continuation of war, provided, of course, that a cause of action
has accrued (see section 8 (4), supra).
The general principle that an alien enemy's right to the perform-
ance of, and right of action on, a contract concluded and executed
by him before war is only suspended by the war, applies particularly
to contracts which only require for their performance by the other
party the payment of money.
Where the unperformed obligation is not an obligation to pay
money, matters become more complicated. If the obligation is in
its nature incapable of being suspended, the contract will be dis-
solved (Griswold v. Waddington, 1818, 16 Johnson, 438, an American
case). This, for instance, would be the case if the proper perform-
ance of the contract required some dealings with the enemy during
the war (Esposito v. Bowden, 1857,7 E. & B. 763). Mutatis mutandis,
the same considerations may even arise where the party who has ful-
filled his part of the contract is not an alien enemy, but a British
subject (see section 16, infra).
Trotter, pp. 37, 38.
Executory contracts with an alien enemy.
An executory contract is a contract which is either wholly unper-
formed or in which there remains something to be done on both sides.
There is little or no authority in English law as to the effect of war
on such contracts concluded with alien enemies before the commence-
ment of hostilities. It is stated in the note at the end of Clementson
v. Blessig, 1855, 11 Exch. 135, that the declaration of war renders
these contracts void. But, as pointed out by Dr. E. J. Shuster (The
Effect of War on Commercial Transactions, p. 14, n.), this statement
only applies to special classes of such contracts. If the American
authorities are taken into account, a more correct statement of the law
would be the following :-
An executory contract concluded with an alien enemy before the
outbreak of war is merely suspended during the war as regards the
right to performance and the right of action (Janson v. Driefontein
Consolidated Mines, Limited, 1902, A. C. 484). But such a contract
is either avoided or dissolved by the outbreak of war (1) if it enures
to the aid of the enemy (Furtado v. Rogers, 1802, 3 Bos. & P. 191);
or (2) if it is in its nature incapable of suspension (Griswold v. Wad-
dington, 1818, 16 Johnson, 438, an American case). A contract will in
its nature be incapable of suspension (a) if its proper performance
necessitates intercourse with the enemy during the war (Esposito v.
Bowden, 1857, 7 E. & B. 763; The “ William Bagaley,” 5 Wall. 377,
407, an American case); or (6) where time is of the essence of the
110678-19m0-23
346
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
contract (New York Life Insurance Company v. Statham, 1876, 93
United States Reports, Supreme Court, 24); or (c) where the parties
cannot, on conclusion of peace, be made equal, for the doctrine of
revival of contracts suspended by war is based on considerations of
equity and justice (ibid.).
This general statement of the law relates to contracts between
parties“ divided by the line of war," that is, domiciled, or for the
time being, in the countries of the respective belligerents (see Cob-
bett's Leading Cases on International Law, 3rd edition, vol. ii, pp.
66 et seq.). It may be exemplified in its application to the principal
kinds of contracts.
(1) Affreightment.--A contract of affreightment may at once be-
come void by the declaration of war (Avery v. Bowden, 25 L. J. Q. B.
49; 26 L. J. Q. B. 3). This will be the case when its performance
•involves trading with the enemy (Esposito v. Bowden, 1857, 7 E. &
B. 763). On the other hand, if its performance can be suspended
till the end of the war, e. 9., in the case of a charter of a ship for
several distinct voyages, ranging over a considerable period of time,
the contract will only be suspended by war.
(2) Agency.—The American doctrine is that the relation of prin-
cipal and agent existing between the residents of belligerent States
is not necessarily, and, as matter of law, terminated by the outbreak
of war. Whether the agency is revoked or not depends upon the cir-
cumstances surrounding the case and the nature and character of the
agency (Williams v. Paine, 1898, 169 United States Reports, Supreme
Court, 55).
A general agency conferring general authority is probably termi-
nated (United States v. Grossmayer, 9 Wall. 72). A limited agency
is suspended so far as it involves any intercourse or dealing with the
enemy, or any transmission of money or property to an enemy coun-
try (ibid. Small's Administrator v. Lumpkin's Executor, 28 Grattan,
832). But where such agency does not involve prohibited acts, and
the assent of the principal or his subsequent ratification is expressly
given, or may reasonably be implied, it continues until otherwise
ended (New York Life Insurance Company v. Davis, 1877, 95 United
States Reports, Supreme Court, 425). Under these circumstances
the American Courts have sustained the following transactions :-
(a) An arrangement by an agent for protecting and safekeep-
ing his principal's property (United States v. Quigley,
103 United States Reports, Supreme Court, 595). If
the agent has the property of the principal in his pos-
session or control, he must preserve it safely during the
war, and must restore it faithfully at its close New
York Insurance Company v. Davis, 1877, 95 United
States Reports, Supreme Court, 425).
SUSPENSION OR DISSOLUTION OF CONTRACT.
347
.
(6) The payment to an agent of a debt due to the princi-
pal, where the agent and the debtor resided in the same
country (Robinson v. International Life Assurance So-
ciety, 1870, 1 American Reports, 490; Sands v. New
York Life Insurance Company, 1872, 10 American Re-
ports, 535). But the agent must have been appointed
before the war (United States v. Grossmayer, 9 Wall.
72). He may invest moneys thus received in property
in the enemy territory, e.g., a British agent could invest
it here (see Stoddart v. United States, 6 Ct. Cl. 340).
(c) A sale by an agent of his principal's property (Murrell v.
Jones, 46 Miss. 565). In Williams v. Paine, 1898, 169
United States Reports, Supreme Court, 55, a power of
attorney executed by a married woman, with her hus-
band's concurrence, to convey her lands was held not
to be revoked by the outbreak of the Civil War. And
in Pope v. Chafee, 14 Rich. Eq. (Supreme Court) 69,
an authority to an agent to receive the proceeds of the
sale of his principal's land was not deemed revoked
by such principal being taken as a prisoner of war.
(d) An attorney's defence of an action against his client
(Washington University v. Finch, 18 Wall. 259). But
the relation of attorney and client is generally termi-
nated by war. Thus, in Blackwell v. Willard, 1871, 6
American Reports, 749, a citizen of New York had a
suit pending in North Carolina before the outbreak of
the Civil War; and payment was made during the war
by the debtor to the attorney. It was held that such
action was void, the relation of attorney and client
being ended by the war.
On the termination of war an agent must account to his principal
(Caldwell v. Harding, 1 Lowell, 326).
*
But where an alien enemy has an English agent, the latter cannot
maintain an action in favour of such enemy where the enemy's in-
terest appears on the record (Brandon v. Nesbitt, 1794, 6 T. R. 23).
(3) Insurance. An insurance by a British subject (including cor-
poration) of an enemy's property against capture at sea by the
British is illegal and void, whether the contract was made before or
after the war (The “ Jan Frederick,” 1804, 5 Ch. Rob. 128; The
“Boodes Lust," 1804, ibid. 233).
In Furtado v. Rogers, 1802, 3 Bos. & P. 191, an insurance with an
English company was effected by the plaintiff on a French ship be-
fore the outbreak of war between France and this country. The ship
was captured by the British, and condemned as enemy property.
348
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
After the conclusion of the war the plaintiff sued on the policy. But
it was held that the contract of insurance was by common law
abrogated by war, on the ground that it amounted to an indemnity
to an enemy owner against the capture of his property by the in-
surer's State, which was inconsistent with the very object of war.
In his judgment Lord Alvanley, C. J., observed that, if a British
subject insured against captures, the law would infer an exception as
regards British captures; whilst if he expressly insured against such
captures the contract would be void ab initio.
An insurance against the capture of an enemy's goods at sea, though
effected with a British underwriter before the outbreak of war, can-
not be enforced against such underwriter, even after the restoration
of peace, in order to recover a loss by capture by an ally of Great
Britain (Brandon v. Curling, 1803, 4 East, 410).
As previously observed in section 9, supra, an insurance of goods
in furtherance of an illegal trading with the enemy is void (Potts v.
Bell, 1800, 8 T. R. 548).
An insurance of an alien enemy's property against loss at sea will,
on the same principles, not cover a loss caused by the British or an
ally, e. 9., destruction by a cruiser.
An express insurance of an alien enemy's property against seizure
by the insured's own Government during a state of war is illegal and
void in its inception; but if such seizure takes place while war is
only imminent, the loss is recoverable under a policy of insurance
against capture in general terms (Janson v. Driefontein Consolidated
Mines, Limited, 1902, A. C. 484).
Insurances of an alien enemy's private property or land, effected
before the outbreak of war, will be dissolved thereby, at all events
if the loss takes place in a mode recognized in international law, e...,
as a penalty for military offences, or on the ground of military
necessity. Probably in all cases where the loss was inflicted by the
British an insurance against it would be inoperative as against the
policy of the Government.
A possible exception is a forced contribution (see Dr. Coleman
Phillippson's Effect of War on Contract, pp. 83-4; Law Quarterly
Review, vol. 18, pp. 289 et seq.; see the Trading with the Enemy
Proclamation of 8th October, 1914).
In all other cases of insurance of property effected before the war
the policy remains valid but cannot be sued on during the war
(Janson v. Driefontein Consolidated Mines, Limited, 1902, A. C.
484). *
There are no English cases on the effect of war on life insurance,
where one of the parties to the contract becomes an alien enemy.
Although there are several American decisions, they are somewhat
SUSPENSION OR DISSOLUTION OF CONTRACT.
349
conflicting, and it is not easy to reconcile them. But the result of
the case law seems to be this: A failure to pay the premiums during
the war avoids the policy (Worthington v. Charter Oak Life In-
surance Company, 1874, 19 American Reports, 495). Where such
failure arises from the fact that it would involve intercourse with
an enemy in enemy territory, then, although the contract is ended, the
assured is entitled to the equitable value of the policy arising from
the premiums actually paid. This equitable value is the difference
between the cost of a new policy and the present value of the premi-
ums yet to be paid on the forfeited policy when the forfeiture oc-
curred, and may be recovered by action on the conclusion of peace
(New York Life Insurance Company v. Statham, 1876, 93 United
States Reports, Supreme Court, 24). The payment of premiums
during the war by the assured to an agent of the company, who re-
sides in the same territory as the assured, binds the company (Robin-
son v. International Life Assurance. Society, 1870, 1 American Re-
ports, 490; Sands v. New York Life Insurance Company, 1872, 10
American Reports, 535); provided such agent continues to have due
authority to receive the premiums (New York Life Insurance Com-
pany v. Davis, 1877, 95 United States Reports, Supreme Court, 425,
which reaffirmed New York Life Insurance Company v. Statham,
1876, 93 United States Reports, Supreme Court, 24). Where an
agent in such circumstances refuses to accept payment, the company
will be held liable (New York Life Insurance Company v. Clopton,
1869, 3 American Reports, 290).
*
*
(4) Leases.-The American view seems to be that a lease is not dis-
solved by war, but that the remedy of the party to it who becomes an
alien enemy is suspended during the war. This was apparently the de-
cision in the case of an implied contract for use and occupancy (Kier-
sted v. Orange and Alexandria Railway Company, 54 How.Pr. (N. Y.),
29, which was reversed on other grounds in 1877, 25 American Reports,
190). Kershaw v. Kelsey, 1868, 100 Mass. 561, is not precisely in
point. The lease was made in time of war between persons "not
divided by the line of war," and was held binding.
(5) Mortgages.-In Dorsey v. Dorsey, 1869,96 American Decisions,
633, it was held that war does not have the effect of preventing a citi-
zen of a State from enforcing its laws in the courts of that
State, so as to subject a non-resident enemy's real estate, therein,
to the payment of a debt contracted before the war, and se-
cured by a proper mortgage on the property itself, which has been
executed and duly recorded prior to hostilities. In short, war does
not suspend a mortgage where there is no occasion to resort to the
enemy's Courts to enforce it against the mortgaged property. The
350
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
*
*
title of a purchaser from the mortgagee is, under such circum-
stances, good; provided that the defendant is served by publication.
Impossibility of receiving and complying with the notice of publica-
tion makes no difference. This American view seems eminently reason-
able, and there appears to be nothing in the way of its adoption by the
Courts here, apart from difficultes in serving process.
(6) Negotiable Instruments.-When a negotiable instrument, such
as a bill of exchange, is made before the war between persons“ divided
by the line of war," it is unenforceable by an alien enemy during the
war; but the remedy revives on the conclusion of peace (section 11,
supra; see Antoine v. Morshead, 1815, 6 Taunt. 237; Pitt Cobbett's
Leading Cases on International Law, 3rd edition, vol. 2, p.
87).
British or neutral holders in due course can sue
on a bill made with an alien enemy in time of war (Johnston
& Wright v. Goldsmid, 15th February, 1809, F. C.-a Scottish
case; see Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61, sections
29, 30, 89, and fourth last paragraph of section 9, supra). The case of
Willison v. Patteson, 1817, 7 Taunt. 439, quoted by Mr. Pitt Cobbett
in his Leading Cases on International Law, 3rd edition, p. 87, as an
authority to the contrary, does not support his view; for in that case
the party suing was an indorsee, who was an alien enemy at the time
of indorsation.
Bills of exchange granted or negotiated to
alien enemies by British prisoners of war for their necessities can be
sued on by such alien enemies on the conclusion of peace (Antoine v.
Morshead, 1815, 6 Taunt. 237).
(7) Partnership.—There is no English decision as to the effect of
war on partnership. Evans v. Richardson, 1817, 3 Mer. 469, only
decided that an agreement between an American subject and an
Englishman, who was then in America, for the exportation of goods
from England to America on their joint account in time of war,
“provided a peace should not be likely to take place at the time of
shipping the goods," was illegal. Lord Lindley, however, is of opin-
ion that Ex parte Boussmaker, 1806, 13 Ves. 71, indicates that war does,
not dissolve a partnership (Treatise on the Law of Companies, vol. i.
p. 53 of the 6th edition). But the case does not go as far as that (sec-
tion 11, supra)
The American doctrine is that a partnership is dissolved by war,
where a partner becomes an alien enemy (Hubbard v. Matthews, 1870,
13 American Reports, 562; Woods v. Wilder, 1870, ibid. 684; Taylor v.
Hutchinson, 1874, 18 American Reports, 699), except as to matters
existing prior to the war (Griswold v. Johnson, 1819, 16 Johnson,
438), and as to winding up (Cramer v. United States, 7 Ct. Cl. 1;
Douglas v. United States, 14 Ct. Cl. 1). Partnership property allowed
to remain in the enemy country has impressed upon it enemy char-
SUSPENSION OR DISSOLUTION OF CONTRACT.
351
acter, and may be condemned as enemy property or for breach of
blockade (The “ William Bagaley,” 5 Wall. 407). In Matthews v.
M’Stea, 1875, 91 United States Reports, Supreme Court, 7, a partner-
ship was not held dissolved as at the outbreak of the Civil War; but
that was because an Act of Congress and a Proclamation by the Presi-
dent had fixed a later date for the cessation of commercial intercourse
with the enemy.
The above review of the British-American case law shows that the
suspensory effect of war on executory contracts is, as a rule, chiefly
confined to those of a continuous nature. Where the executory con-
tract is not of this character, but relates to a single transaction, e. g.,
a sale of goods or land, it will generally be dissolved by the outbreak
of war. In many such cases time will be of the essence of the con-
tract, either by the express agreement of the parties or from the cir-
cumstances of the case, as, for example, in an agreement to sell perish-
able goods or an interest in property of a speulative or wasting nature.
There are, of course, some contracts where time is not essential, e. g.,
a promise to marry. But in most cases time either is or becomes im-
portant. So the duration of the war beyond what would be regarded
by the Court as reasonable, in a given executory contract of this nature,
will probably dissolve the agreement.
Trotter, p. 48.
Statutes of limitation.
It has been held in the United States that a statute limiting the
time within which an action can be brought on a contract does not
run whilst such right of action is suspended by war (Hanger v.
Abbott, 1867, 6 Wall. 532), unless there is an express provision to
the contrary in the statute (Luter v. Hunter, 1868, 98 American De-
cisions, 494).
Some eminent English jurists accept this view. See, for instance,
Westlake's International Law, part ii, p. 49; Pollock's Principles of
Contract, 8th edition, p. 86, n. But there is an obiter dictum of Lord
Bramwell to the opposite effect in De Wahl v. Braune, 1856, 1 H. &
N. 178; 25 L. J. Ex. 343. The passage only occurs in the latter re-
port of the case. In that case an English woman, living here sepa-
rately from her husband, who was an alien enemy domiciled in Rus-
sia, claimed to sue on a contract as a feme sole, and part of the argu-
ment set up on her behalf was, that unless she could so sue, the claim
might be barred by the Statute of Limitations. But Lord Bramwell
(then Bramwell, J.) observed that "the inconvenient operation of the
Statute of Limitations is no answer, and does not take the case out
of the general rule,” i. e., that her husband had to join in the action.
352
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Some great English lawyers adopt this dictum (see Anson on Con-
tracts, 13th edition, p. 129; Lindley on Company Law, 6th edition,
p. 53). There seems to be no Scottish case or opinion as to whether
or no prescription runs in such cases.
Trotter, p. 49.
Contracts with persons who do not become enemies.
When a contract is made before the outbreak of war with a party
who does not subsequently become an alien enemy, it will be dissolved
by war in two cases—(1) Where a state of war makes the contract
illegal, or (2) where performance of the contract is thereby rendered
impossible, provided that the possibility of performance was known
by the parties to depend upon the continuance of a state of peace.
The leading case of Esposito v. Bowden, 1857, 7 E. & B. 763, estab-
lishes the rule that a contract made before war is dissolved where
the outbreak of war makes its performance illegal.
The plaintiff in that case was the owner of a neutral ship chartered
by the defendant, a British subject, to bring a cargo of corn from
Odessa. Before the ship reached that port, Great Britain declared
war against Russia. The defendant did not therefore load the cargo,
and was sued by the plaintiff, a neutral, for breach of contract. The
Court held that the contract was dissolved by the outbreak of hos-
tilities, because its performance would have involved an illegal trad-
ing with the enemy on the part of the defendant. The authorities are
reviewed in the elaborate judgment of Willes, J., who has been well
described by Sir Frederick Pollock as a master of the common law.
(See Reid v. Hoskins, 6 E. & B. 953, a similar case, but where both
parties were British subjects.)
But where the terms of a charter party and bill of lading are such
that it can be legally performed by delivery of the cargo at some of
the other ports mentioned in the contract, and is so performed, an
action for freight will lie against the owners of the cargo, and war
has no effect upon such a contract. (The " Teutonia," 1872, L. R. 4 P.
C. 171.)
No action of damages lies in case of deviation in a voyage or de-
tention of a ship in neutral waters in order to avoid imminent risk
of capture (The “San Roman," 1873, 5 P. C. 301; see also The
“Patria," 3 A. & E. 436; The “ Heinrich," ibid. 424; The “Express,"
ibid. 597).
A mere apprehension that the port of loading is about to become
hostile, or a mere apprehension of capture not founded on circum-
stances which would affect the mind of a master of ordinary courage,
judgment, and experience, is not sufficient to justify delay in the
voyage (Atkinson v. Ritchie, 10 East, 530; Orgood v. Groning, 2
Camp. 466).
SUSPENSION OR DISSOLUTION OF CONTRACT.
353
In short, deviation or delay in prosecuting the voyage contemplated
in a policy of marine insurance is excused where reasonably neces-
sary for the safety of the ship or subject-matter insured (Marine In-
surance Act, 1906 (6 Edw. VII. C. 41, section 30 (4); see also ibid.
sub-sections 2, 3, 5, 6, for other excusing circumstances, all of which
are likely to arise in time of war)
An insurance by a British company of its property in an enemy
country against capture by enemies, which has been effected before
war with a British insurer, is valid, provided such property has not
acquired enemy character by any act of the owner evincing an inten-
tion to retain his domicile in enemy territory, e. g., by continuing to
work a gold mine therein (Nigel Gold Mining Company v. Hoade,
1901, 2 K. B. 849).
A contract for the exportation of goods, although made before the
outbreak of war with a party who does not thereby become an alien
enemy, may be rendered illegal and void by a Proclamation or Order
in Council issued under statutory authority, e. g., under section 8 of
the Customs and Inland Revenue Act, 1879, or under section 1 of
the Exportation of Arms Act, 1900. Several such Proclamations
have been issued in connection with the present war, and are set
forth in Part IV. of this book.
The outbreak of a war in which Great Britain is not a party may
render performance of a contract illegal.
In O'Neil v. Armstrong, 1895, 2 Q. B. 418, an Englishman was en-
gaged by the captain of a Japanese warship to act as a fireman on a
voyage from the Tyne to Yokohama. In the course of the voyage
war broke out between China and Japan. Further performance of
the contract by the Englishman was illegal under the Foreign Enlist-
ment Act, 1870 (33 & 34 Vict. c. 90), section 3. He was held entitled
to leave the ship and sue for the wages agreed upon, since the act of
the Government in Japan had made his performance of the contract
legally impossible.
The illegality of any part of a contract vitiates the whole, unless
the illegal part can be separated from the legal, in which case the
latter can be enforced (per Willes, J., in Pickering v. Ilfracombe
Railway Company, 1868, L. R. C. P. 250). So where a contract in-
cludes several obligations, some only of which are unlawful, the re-
mainder (if separable) are valid (Gaskell v. King, 11 East, 164;
Mallan v. May, 1843, 11 M. & W. 665; 13 M. & W. 517; Maxim-Nor-
denfeldt Gun Company v. Nordenfeldt, 1894, A. C. 535). But, as a
general rule, a promise given for a consideration, part of which is
illegal, is void (Rex. v. Northwingfield, 1830, 1B & Ad. 912; Mait-
land v. Rattray, 1848, 11 D. 71). There seems to be no apportion-
354
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ment of consideration (Fetherstone 2. Hutchinson, 1590, Cro. Eliz.
199), unless in the case of several obligations granted for distinct
and several considerations (Pigot's Case, 1614, 11 Co. Rep. 27 6).
Thus, if a British subject is licensed to trade in particular goods,
or goods to a certain amount, with the enemy, and insures his whole
cargo with a British company, such insurance will cover the licensed
goods, unless the whole contract is indivisible (Butler v. Allnutt, 1
Stark 222; Pieschell v. Allnutt, 4 Taunt. 792). If the contract be
divisible, it is immaterial whether the difference in the cargo is one
of quantity only (Keir v. Andrade, 2 Marsh. 196).
So far we have only considered contracts which are dissolved either
by the mere outbreak of war or by a subsequent change in the law
made in connection with war. We have now to discuss the effect of
war in creating impossibility of performance of a contract, where
the parties have made no provision in their agreement as to this
eventuality.
The impossibility under discussion does not include what has been
termed "commercial impossibility," i. e., extreme and unforeseen
cost or difficulty of performance, which is no excuse for non-per-
formance (Hong-Kong and Whampoa Dock Company, Limited, v.
Netherton Shipping Company, Limited, 1909, S. C. 37, a Scottish
case; Brown v. Royal Insurance Company, 1859, 1 E. & E. 855).
Again, if any one agrees to do work according to orders or specifica-
tions from the other party to the contract, he is not freed from his
obligation by the fact that such work turns out to be impracticable.
In the Scottish case of Gillespie & Co. v. Howden & Co. 1885, 12 R.
800, there was a contract for the building of a ship of specified di-
mensions and carrying power, according to a model to be approved
by the purchaser. The ship actually built was deficient in the re-
quired carrying capacity. In an action for damages for breach of
contract at the instance of the purchaser, it was held no defence to
show that it was impossible to build a seaworthy ship of the required
dimensions and carrying capacity according to the model. English
cases to the same effect are Jones v- St. John's College (Oxford),
1870, L. R. 6 Q. B. 115, 124, and Thorn 'v. Mayor of London, 1876,
L. R. 9 Ex. 163; 10 Ex. 112; affirmed by the House of Lords, 1 App.
Cas. 120. Any impossibility of the above kinds caused by war will
have no effect on a contract made before or during the war. Noth-
ing short of sheer impossibility will serve as an excuse, and even
then it only does so under certain circumstances, which must now be
considered
A general rule is laid down in Paradine v. Jane, 1647, Aleyn, 26,
where the defendant was sued for rent due on a lease. The defend-
ant pleaded that a certain German prince, by name Prince Rupert,
SUSPENSION OR DISSOLUTION OF CONTRACT.
355
an alien born, enemy to the King and his kingdom, had invaded the
realm with a hostile army of men; and with the same force did
enter upon the defendant's possession, and him expelled, and held
out of possession whereby he could not take the profits. This
was held to be no excuse for the non-payment of the rent. And this
difference was taken, that where the law creates a duty or charge,
and the party is disabled to perform it without any default in him,
and hath no remedy over, there the law will excuse him. As in the
case of Waste, if a house be destroyed by tempest, or by enemies,
the lessee is excused. ... But when the party by his own contract
creates a duty or charge upon himself, he is bound to make it good,
if he may, notwithstanding any accident by inevitable necessity, be-
cause he might have provided against it by his contract. And there-
fore, if the lessee covenant to repair a house, though it be burnt by
lightning or thrown down by enemies, yet he ought to repair it."
An express unconditional contract is not, then, as a general rule,
dissolved by its performance being or becoming quite impossible in
fact owing to particular circumstances, one of which is war. This
rule is not only accepted by all authorities, e. g., Sir Frederick Pol-
lock (Principles of Contract, 7th edition, pp. 407–8), and Anson (Law
of Contract, 13th edition, pp. 370-372), but is also supported by posi-
tive decisions, such as Hills v. Sughrue, 1846, 15 M. & W. 253;
Kearon v. Pearson, 1861, 7 H. & N. 386; Thiis v. Byers, 1876, 1 Q. B.
D. 244; Budgett v. Binnington, 1891, 1 Q. B. 35; see also Barker v.
Hodgson, 1814, 3 M. & S. 267; Spence v. Chodwick, 1847, 10 Q. B.
517. This rule does not extend to implied contracts (Ford v. Cotes-
worth, 1870, L. R. 5 Q. B. 544; Hicks v. Raymond, 1893, A. C. 22),
nor to a contract where both parties are prevented, e. g., by foreign
law, from performing their respective parts of the agreement (Cun-
ningham v. Dunn, 1878, 3 C. P. D. 443). Hence war may dissolve
an implied contract by rendering its fulfilment impossible, and also
dissolves an express unconditional contract which it makes impos-
sible of performance by either party. But the outbreak of war will
not affect an express unconditional contract by rendering it im-
possible of performance by one of the parties, unless it falls within
the admitted exceptions to the general rule.
The general nature of these exceptions is thus stated in Baily v.
De Crespigny, 1869, L. R. 4 Q. B. 185-
There can be no doubt that a man may by an absolute contract
bind himself to perform things which subsequently become impos-
sible, or to pay damages for the non-performance, and this construc-
tion is to be put pon an unqualified undertaking, where the event
which causes the impossibility was or might have been anticipated
and guarded against in the contract, or where the impossibility arises
66
1
356
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
from the act or default of the promiser (e. g. by voluntary enlistment
at the present time in the Army or Navy after making a contract
before the war for personal services).
But where the event is of such a character that it cannot reason-
ably be supposed to have been in the contemplation of the con-
tracting parties when the contract was made, they will not be held
bound by general words which, though large enough to include, were
not used with reference to the possibility of the particular con-
tingency which afterwards happens. It is on this principle that the
act of God is in some cases said to excuse the breach of a contract.
This is in fact an inaccurate expression, because, where it is an an-
swer to a complaint of an alleged breach of contract that the thing
done or left undone was so by the act of God, what is meant is that
it was not within the contract.
The group of exceptions has been widened by recent decisions.
But perhaps the law may be thus summarised—If, according to the
true intention of the parties, the contract was conditional on its per-
formance being or continuing possible in fact, it will be avoided by
performance being or becoming impossible in fact. Such an intention
is presumed where the performance depends on the existence or con-
tinued existence of some thing, or state of things, or condition (e. g.,
the life or health of a party in a contract of personal services). This
general statement, however, requires to be applied to particular cases.
(1) “Where there is an agreement to sell specific goods, and sub-
sequently the goods, without any fault on the part of the seller or
buyer, perish before the risk passes to buyer, the agreement is thereby
avoided.” (Sale of Goods Act, 1893, 56 & 57 Vict. c. 71, section 7;
Leitch v. Edinburgh Ice and Cold Storage Company, 1900, 2 F. 904)
This rule would apply to an agreement to sell specific goods in a
British ship which had been destroyed at sea by a German cruiser.
In Appleby v. Myers, 1867, L. R. 2 C. P. 651, a contract to erect
machinery upon certain premises and keep it in repair for two years
was held to be discharged by the total destruction of the premises
through fire during the progress of the work. If the destruction had
taken place through a bomb from a Zeppelin, the effect on such a
contract would have been the same.
In the same way, where an agreement is made for the use of prem-
ises for a particular purpose, e. g., a musical performance, and are
destroyed, say, by fire, before the time when they are to be used, the
agreement is discharged (Taylor v. Caldwell, 1862, 3 B. & S. 826).
The principle of Taylor v. Caldwell would cover the case of the
charter party of a British ship which, before the contemplated voy-
age, had been requisitioned by the British Government for transport
purposes under section 115 of the Army Act, 1914. It would also
SUSPENSION OR DISSOLUTION OF CONTRACT.
357
*
*
*
**
apply to an agreement to sell specific goods which had been similarly
requisitioned.
(2) The Coronation cases are K'reli v. Henry, 1903, 2 K. B. 740;
Civil Service Co-operative Society v. General Steam Navigation
Company, ibid. 756; Blakeley v. Muller & Co., ibid. 760 n; Herne Bay
Steamboat Company, ibid. 683; Chandler v. Webster, 1904, 1
K. B. 493.
The principle underlying these cases is that “where a contract is
entered into on the assumption by both parties that a particular state
of things exists or will occur, the non-existence or the non-occurrence
of that state of things through default of neither party discharges
the contract. (Anson's Law of Contract, 13th Edition, p. 374.)
(3) A contract for personal services is ended by the death of either
party or the incapacitating illness of the party who is to perform
the services (Robinson v. Davidson, 1871, L. R. 6 Ex. 269; see judg-
ment of Baron Bramwell at p. 277; London Theatre of Varieties v.
Will Evans, 1914, 30 T. L. R. 258). Hence if the owner of a business
engaged a manager, either before or during this war, for a period
of say, five years, and went out on military service and was killed,
the agreement would be ended (see Hoey v. MacEwan & Auld, 1867,
5 M. 814, a Scottish case; Farrow v. Wilson, 1869, L. R. 4 C. P. 744).
It has been suggested in The Law Times, vol. 137, p. 461, that this
principle extends to all cases where the impossibility is caused by
personal incapacity through enforced absence, e. g., where a reservist
is called up for military service, and not merely to cases of death, ill-
ness, or insanity. The inference from this is that incapacity to per-
form personal services caused by the provision being called up as a
reservist would end the contract. But this is not necessarily so. The
particular contingency must be such that it must be presumed to
have been within the contemplation of both parties (see rule (2),
supra, of which rule (3) is only a particular example). Suppose A
has engaged as Manager B, a reservist liable to be called out for
foreign service, and A is not aware of this fact. Suppose further,
that the engagement was made before the war for ten years. It is
submitted that such a contract would not be ended by the outbreak of
war, and that B. would still be bound by his engagement.
The extinction of a contract by supervening impossibility does not
affect specific rights already acquired under it by either party (see
Taylor v. Caldwell, 1863, 3 B. & S. 826; Whincup v. Hughes, 1871,
L. R. 6 C. P. 78; Anglo-Egyptian Company v. Rennie, 1875, L. R.
10, C. P. 271). Thus a sum paid on engaging seats to view the Coro-
nation procession of King Edward VII (Blakely v. Muller & Co.
1903, 2 K. B. 760 n.), or a deposit paid for the same purpose (Krell
v. Henry, 1903, 2 K. B. 740) were held not recoverable. In the Civil
358
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Service Co-operative Society, Limited, v. General Steam Navigation
Company, Limited, 1903, 2 K. B. 756, a steamer was hired for three
days in connection with the naval review on the occasion of the
Coronation of King Edward VII. The whole of the money was
paid according to the terms of the charter party ten days before the
date fixed for the naval review, which never took place. The money
was held not to be recoverable. Hence if a deposit had been paid
before this war for a tourist ticket with a tourist agency for a tour
round Germany, such deposit would, in the absence of provisions to
the contrary, be irrecoverable, when war made the tour impossible.
The effects of partial impossibility depend upon the express or
implied intention of the parties to the agreement. It is a question
of construction whether partial impossibility avoids a contract, or
whether performance by one party of the possible part entitles him
or his representatives to claim what (if any) recompense or counter-
performance from the other (Meñetone v. Athawer, 1794, 3 Burr.
1592; Cutter v. Powell, 1795, 6 T. R. 320; Gillett v. Mawman, 1808,
1 Taunt. 140; The " Teutonia," 1872, L. R. 4 P. C. 171).
In Appleby v. Myers, 1867, L. R. 2 C. P. 651, where performance
of the rest of the contract by one party became impossible, it was
held that he could not recover payment for what had been done by
him. But there the contract was that nothing should be payable
unless and until the whole work was completed. In Scotland, how-
ever, he could have recovered such payment in the absence of any
express agreement to the contrary (Trotter's Law of Contract in
Scotland, pp. 332, 358).
Again in the Herne Bay Steamship Company v. Hutton, 1903,
2 K. B. 683, there was an agreement for the charter of a steamship
for one day to view the Coronation naval review and to cruise round
the fleet. A deposit was paid. Although the naval review did not
take place, the agreement was held not to be discharged on the ground
that the occurrence of that review was not the sole basis of the con-
tract. A cruise round the fleet had still been possible.
If at the time when the contract is made, there are two alternative
modes of performance, only one of which is rendered illegal or im-
possible by the outbreak of war or a change in the law consequent
thereon, then, on the authority of Da Costa v. Davis, 1798, 1 Bos. & P.
242, and Stevens v. Webb, 1835, 7 C. & P. 62, the obligant must adopt
the possible mode of performance. But this will depend upon the
terms of the contract, especially where one of the modes of perform-
ance becomes impossible before an election (if permissible) has been
made (Barkworth v. Young, 1856, 4 Drew, 1, at p. 25). It would
seem from Brown v. Royal Insurance Company, 1859, 1 E. & E. 853,
that where a choice of alternative and optional modes of performance
has been made, and the mode chosen becomes subsequently impossi-
SUSPENSION OR DISSOLUTION OF CONTRACT.
359
ble, the effect is the same as if the obligant had originally agreed to
perform his obligation in the manner selected.
Much, but not all, of the above discussion has related to contracts
made before the war. The parties to a contract made during it will
generally be presumed to have contemplated the contingencies of
war. War will not be an unforeseen event as regards such contracts.
But even here many of the foregoing considerations will apply,
mutatis mutandis. Thus emergency legislation may render such
contracts legally impossible. Again, a thing agreed to be sold may
have been destroyed, unknown to, and without the fault of, either
party, before the risk passed to the buyer. The events of war may
bring about a total failure of consideration, and so on.
Trotter, pp. 54-64.
Furtado v. Rogers, 3 Bosanqwet and Puller, 191.—Lord Alvanley
said: “There are two questions for our consideration-first, whether
it be lawful for a British subject to insure an enemy from the effect
of capture made by his own government; secondly, whether, if that be
illegal, the insurance in this case, having been made previous to the
commencement of hostilities, will make any difference. As to the
first point, it has been understood for some years past to have been
the opinion of ail Westminister Hall, and, I believe, of the nation
at large, that such insurances are not strictly legal or capable of
being enforced in a Court of justice.”
*
*
*
“The question, then, is whether the law does not make that excep-
tion, and whether it be competent to an English underwriter to
indemnify persons who may be engaged in war with his own sov-
ereign against the consequences of that war? We are all of opinion
that, on the principles of the English law, it is not competent to any
subject to enter into a contract to do anything which may be detri-
mental to the interests of his own country, that such a contract
is as much prohibited as if it had been expressly forbidden by Act
of Parliament. It is admitted that, if a man contract to do a thing
which is afterwards prohibited by Act of Parliament, he is not
bound by his contract. This was expressly laid down in Brewster .
v. Kitchell, 1 Salk. 198. And on the same principle, where hostili-
ties commence between the country of the underwriter and the
assured, the former is forbidden to fulfil his contract. With respect
to the expediency of these insurances, it seems only necessary to cite
a single line from Bynkershoek (Quaest, Juris Pub. lib. 1, c. 21;
Marshall, p. 31), and part of a passage in Valin (Marshall, p. 32).
The former says, “Hostium pericula in se suscipere quid est aliud
quam eorum commercia maritima promovere," and the latter, speak-
ing of the conduct of the English during the war of 1756, who per-
360
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
mitted these insurances, says, “The consequence was that one part of
that nation restored to us by the effect of insurance what the other
took from us by the rights of war.”
*
“There is no express declaration, therefore, of the Court of King's
Bench either for or against the legality of such insurances, and the
question comes now to be decided for the first time. We are all of
opinion that to insure enemies' property was at common law illegal,
for the reasons given by the two foreign jurists to whom I have re-
ferred. If this be so, a contract of this kind entered into previous
to the commencement of hostilities must be equally unavailable in a
Court of law, since it is equally injurious to the interests of the coun-
try; for if such a contract could be supported, a foreigner might
insure previous to the war against all the evils incident to war. But
it is said that the action is suspended, and that the indemnity comes
so late that it does not strengthen the resources of the enemy during
the war. The enemy, however, is very little injured by captures for
which he is sure at some period or other to be repaid by the under-
writer."
“The ground upon which we decide this case is that, when a Brit-
ish subject insures against captures, the law infers that the contract
contains an exception of captures made by the Government of his
own country, and that, if he had expressly insured against British
capture, such a contract would be abrogated by the law of England.
With respect to the argument insisted upon by way of answer to the
public inconvenience likely to arise from permitting such contracts
to be enforced, viz., that all contracts made with an enemy enure to
the benefit of the King during the war, and that he may enforce pay-
ment of any debt due to an alien enemy from any of his subjects, we
think it is not entitled to much weight. Such a course of proceeding
never has been adopted; nor is it very probable that it ever will be
adopted, as well from the difficulties attending it as the disinclination
to put in force such a prerogative. The plaintiff, I am sorry to say,
is not entitled to a return of premium, because the contract was legal
at the time the risk commenced, and was a good insurance against
all other losses but that arising from capture by the forces of Great
Britain.
Judgment for the defendant."
Trotter, pp. 202-205.
Brandon v. Curling, 4 East 410.–Lord Ellenborough, C. J., said:
“The question is-Whether a policy of assurance on goods, effected
in the usual terms by the plaintiff, à British subject, under orders
from the French subjects, who are averred to be interested therein,
SUSPENSION OR DISSOLUTION OF CONTRACT.
361
and underwritten by the defendant, a British subject, be an insurance
valid and effectual in point of law for the purpose of covering such
goods in the course of their exportation and transit from Great
Britain to Bayonne in France, in the event which has taken place of
war between the two countries? And having, in the judgments re-
cently given by us in the cases of Kellner v. Le Mesurier and Gamba
v. Mesurier, declared our opinion that the general terms of insurance
against capture are to be understood as virtually containing an excep-
tion of such captures as might eventually be made by His Majesty
and his subjects, and against which a British subject could not con-
sistently with his public duty insure in direct terms, it follows as a
consequence of the same principle that wherever the generality of the
terms of assurance might in their actual application to the covering
of any particular risk produce, if effect were given to them in their
extended sense, a similar contravention of public interest, the insur-
ance must be construed in such a manner as to exclude the particular
event or peril which could not, for the reason above mentioned, be
so made the subject of a legal insurance in direct terms by a British
underwriter. So that where the insurance is upon goods generally, a
proviso to this effect shall in all cases be considered as engrafted
therein, viz: Provided that this insurance shall not extend to cover
any loss happening during the existence of hostilities between the re-
spective countries of the assured and assurer.' Because during the
existence of such hostilities the subjects of the one country cannot
allowably lend their assistance to protect by insurance the property
and commerce of the subjects of the other. And in like manner, and
upon similar principles of public policy, the risk of detention of
princes, &c., must be understood to be restrained and qualified by an
implied proviso, that it shall not extend to cover any loss hap-
pening in the course of any contraband adventure, in which the goods
would become liable to seizure as forfeited by the laws of this
country.""
Trotter, p. 238.
در و
.
In Boussmaker, ex parte, 13 Vesey '71, the Court said: “If this had
been a debt arising from a contract with an alien enemy it could not
possibly stand, for the contract would be void (Evans v. Richardson,
4 Mer. 469; Ex parte Schmaling, Buck. 93. Potts v. Bell, 3 Term
Rep. 548; Willison v. Patteson, 7 Taunt, 439, in which case this peti-
tion is supposed to have been heard by Lord Eldon). But, if the two
nations were at peace at the date of the contract, from the time of war
taking place the creditor could not sue; but, the contract being origi-
nally good, upon the return of peace the right would survive. It
would be contrary to justice, therefore, to confiscate this dividend.
110678--19 -24
362
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Though the right to recover is suspended, that is no reason why the
fund should be divided among the other creditors.”
Trotter, p. 190.
Alcinous v. Nigreu, 4 Ellis and Blackburn, 217.—Lord Campbell
said: “I am of opinion that the defendant is entitled to our judgment.
“We should be anxious to give the Russian plaintiff, though an
enemy, every advantage which the law of England gives him. The
contract having been entered into before the commencement of hos-
tilities, is valid; and, when peace is restored, the plaintiff may enforce
it in our Courts. But, by the law of England, so long as hostilities
prevail he cannot sue here."
Trotter, p. 189.
C'lementson v. Blessig and another, 11 Hurlstone & Gordon's Exch.
Reports 135.–Pollock, C. B. said: “I am of opinion that the plaintiff
is entitled to judgment. The question is whether the contract is
illegal, and therefore in law incapable of being performed. I am of
opinion that it is not. Apart from the declaration of war with Russia,
the case would be free from doubt. The defendants, on the plaintiff
doing certain things, undertake to accept the plaintiff's draft. The
plaintiff, having done those things, calls upon the defendants to per-
form their undertaking, when they set up as a defence the illegality of
the transaction, in answer to which the plaintiff, in his replication, sets
out the Order in Council. I am of opinion that the Order in Council
rendered the transaction capable of being performed. The defend-
ants might, within the time limited, have shipped the goods on board
a neutral or a Russian vessel, and so have delivered them to the per-
sons for whom they were intended.”
Martin, B. said: “I also think that the plaintiff is entitled to judg-
ment. It seems to me, for the reason already given, that there is noth-
ing illegal in this transaction. My present impression is that even
if there had been no Order in Council, this contract might have been
legally performed. Where there is a contract for the sale of goods by
a British subject to an alien who is legally competent to contract, the
property vests in him; and if he afterwards becomes an enemy, he still
retains the property, subject to forfeiture to the Crown. That is in
accordance with the doctrine laid down in Com. Dig. Alien' (C. 2)
(C. 4). Nothing but an Act of Parliament can render illegal a con-
tract which was legal in its inception; and therefore I think that in
this case the property would vest in an alien enemy, subject to
forfeiture to the Crown. Then by the Order in Council the Crown,
under certain circumstances, waives its right to deal with the prop-
erty of the enemy. Therefore, assuming that this was a contract be-
tween the vendor and vendee, I am inclined to think that there would
SUSPENSION OR DISSOLUTION OF CONTRACT.
363
have been nothing illegal in performing it unless, in the course of the
voyage, the plaintiff dealt with the alien enemy."
*
Secondly, as to contracts with an alien unexecuted at the time of
the declaration of war. With the exception of the passage cited from
Abbott on Shipping, p. 596, there is little authority on the subject;
but it would seem to follow from the rule above stated that the declara-
tion of war renders such contracts void. In Brewster v. Kitchell, 1
1
Salk. 198, Lord Holt says, “If a person covenants to do a thing
which is lawful, and an Act of Parliament comes and hinders him
from doing it, the covenant is repealed.” And Lord Alvanley, C. J.,
alluding to that passage says="And on the same principle, where
hostilities commence between the country of the underwriter and the
assured, the former is forbidden to fulfil his contract.” With respect
to the argument insisted upon by way of answer to the public incon-
venience likely to arise from permitting such contracts to be enforced,
viz., that all contracts made with an alien enemy enure to the benefit
of the King during the war, and that he may enforce payment of any
debt due to an alien enemy from any of his subjects, we think that it
is not entitled to much weight. Such a course never has been adopted,
nor is it very probable that it ever will be adopted, as well from the
difficulty attending it as the disinclination to put in force such a
prerogative (Furtado v. Rogers, 3 B. & P. 191; see also Gamba v. Le
Mesurier, 4 East, 407; Brandon v. Curling, 4 East, 410; Brandon v.
Nesbitt, 6 T. R. 23; M'Gavon v. Stewart, 4 Wils. & Shaw, 193).
Thirdly, as to executed contracts with an alien. Where there is a
valid contract at the time of the declaration of war, the rights of the
parties in respect of it are only suspended, and, if the Crown does not
in the meantime interfere, may be enforced upon the return of peace.
Thus, where an agent effected an insurance on behalf of an alien, and
the loss happened before he became an enemy, it was held that as the
contract was complete, there was only a temporary suspension of the
right to sue; and that, in the absence of a plea of alien enemy, the
plaintiff was entitled to recover (Flindt v. Waters, 15 East 260).
Lord Ellenborough there says—"The defense of alien enemy must
be accommodated to the nature of the transaction out of which
it arises; it may go to the contract itself on which the plaintiff sues,
and operate as a perpetual bar; or the objection may, as in a case of
this sort, be merely personal in respect to the capacity of the party to
sue upon it.” On this principle Lord Erskine admitted an alien
enemy to prove his debt under a commission of bankruptcy (ex parte
Boussmaker, 13 Ves. 71). The distinction pointed out by Lord Ellen-
borough shows when the defence of “alien enemy” ought to be
pleaded in bar, and when in abatement.
Trotter, pp. 193, 194, 197.
364
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Esposito v. Bowden, vy Ellis & Blackburn 1763.—Willis, J. said:
“We are of opinion that for a British subject (not domiciled in a
neutral country, which the defendant cannot be presumed to have
been) to ship a cargo from an enemy's port even in a neutral vessel,
without licence, is an act prima facie and under all ordinary circum-
stances a dealing and trading with the enemy, and therefore forbid-
den by law; that it lies on the person alleging it to be lawful in the
particular instance to establish the circumstances which make it so;
and that, in the absence of proof that it was lawful, neither a British
subject nor an alien friend can found any action upon the fact of its
not having been performed.
“The Sovereign of this country has the right to proclaim war, with
all its consequences, enforcing or mitigating them either generally or
in particular instances as may be thought best by the Government.
One of those consequences, not removed or dispensed with by any
treaty, Order in Council, or licence, or by any special circumstance
of necessity in the particular case, is that trade and dealing with the
enemy, unless expressly permitted, are forbidden.
“The plea alleges that the contract could not have been fulfilled
without such dealing and trade. That, as we have already shown
upon grounds not considered in the judgment of the Court of Queen's
Bench, may be true. If it may, then, inasmuch as the law justifies .
what it commands, and effects that purpose in cases like the present,
by dissolving contracts which presumably cannot be executed with-
out dealing and trading with the enemy, the plea is sufficient.
“We therefore reverse the judgment of the Court below, and give
judgment for the defendant."
Trotter, p. 274.
Dorsey v. Kyle, 96 American Decisions 617, 620.—The Court said:
“While it may be conceded that, by his own voluntary act, the appel-
lant did assume the attitude of an alien enemy to this State and the
Government of the United States, yet we cannot for a moment accede
to the proposition that all legal remedies were therefore suspended in
our own Courts as against him or his property remaining within the
jurisdiction of this State. Such a proposition is as novel in juris-
prudence as it would be unjust to creditors. There is no precedent
of authority or principle known to us that gives it the least sanction.
The case of Griswold v. Waddington, 15 Johns, 57, and same case in
16 Johns, 438, in error, relied on by the appellant, does not in any
manner tend to support such a proposition. That was a case grow-
ing out of dealings and transactions that had taken place between
citizens of hostile countries during the pendency of war, and in con-
travention of the law of the land, And the proposition there af-
firmed was that no valid contract can exist, nor any promise arise
SUSPENSION OR DISSOLUTION OF CONTRACT.
365
by implication of law from any transaction, with an enemy during
the existence of hostility; and if, after the war has ceased, an action
is brought against a citizen upon any contract arising out of such
illicit intercourse, the defendant may set up the illegality of the
transaction as a defence. This, as was shown by the elaborate dis-
cussion and great research of Chancellor Kent in the case referred
to, is a rule firmly established by universal authority. But that is
altogether a different proposition from the one involved in the cases
before us.
Here, the contracts upon which the proceedings were taken had
an antecedent existence to the war, and were made and grew out of
transactions with the appellant when he was a resident citizen of the
State; and the question is whether they can be legally enforced in
the Courts of this State, in the absence of the appellant, against his
property by attachment.
"As a general rule, an alien enemy is not allowed to maintain suit
in the Courts of the country with which he is at the time in hostility.
This, however, is a personal disability of temporary duration, and is
founded upon reason and policy, and to some extent upon the neces-
sity of the case. But no such reason or policy forbids judicial pro-
ceedings against an alien enemy in favour of a friendly citizen; and
it is therefore asserted by good authority that while an alien enemy
may not sue, he may be sued at law (Bac. Abr., tit. Alien, D.).
Hence we know of no such thing as a plea by the defendant of his
own alien enmity to the government in whose Courts he is sued.
The plea of alien enemy goes only to the disability of the plaintiff.
It is not a matter of privilege, but a disability that suspends the
right to maintain an action in the Courts of the country to which the
party is an enemy.
Trotter, pp. 289, 290.
Matthews v. M'Stea, 91 U. S. 7.—Mr. Justice Strong said: “It
must also be conceded, as a general rule, to be one of the immediate
consequences of a declaration of war and the effect of a state of war,
even when not declared, that all commercial intercourse and dealing
between the subjects or adherents of the contending powers is un-
lawful, and is interdicted. The reasons for this rule are obvious.
They are, that, in a state of war, all the members of each belligerent
are respectively enemies of all the members of the other belligerent;
and, were commercial intercourse allowed, it would tend to strengthen
the enemy and afford facilities for conveying intelligence, and even
for traitorous correspondence. Hence it has become an established
doctrine that war puts an end to all commercial dealing between the
citizens or subjects of the nations or powers at war, and places
every individual of the respective governments as well as the govern-
366
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ments themselves, in a state of hostility,' and it dissolves commercial
partnerships existing between the subjects or citizens of the two con-
tending parties prior to the war, for their continued existence would
involve community of interest and mutual dealing between enemies."
Trotter, p. 255.
New York Life Insurance Co. v. Statham, 93 U. S. 24, 1.–The
Court said: “The case, therefore, is one in which time is material and
of the essence of the contract. Non-payment at the day involves
absolute forfeiture, if such be the terms of the contract, as is the case
here. Courts cannot with safety vary the stipulation of the parties
by introducing equities for the relief of the insured against their
own negligence.
6 But the Court below bases its decision on the assumption that,
when performance of the condition becomes illegal in consequence
of the prevalance of public war, it is excused, and forfeiture does
not ensue. It supposes the contract to have been suspended during
the war, and to have revived with all its force when the war ended.
Such a suspension and revival do take place in the case of ordinary
debts. But have they ever been known to take place in the case of
executory contracts in which time is material? If a Texas merchant
had contracted to furnish some Northern explorer with a thousand
cans of preserved meat by a certain day, so as to be ready for his
departure for the North Pole, and was prevented from furnishing
it by the Civil War, would the contract still be good at the close of
the war five years afterwards, and after the return of the expedition?
*
*
**
66
We are of opinion, therefore, first, that as the companies elected
to insist upon the condition in these cases, the policies in question
must be regarded as extinguished by the non-payment of the premi-
ums, though caused by the existence of the war, and that an action
will not lie for the amount insured thereon."
Trotter, pp. 211, 212, 214.
Williams v. Paine. 169 U. S. 55.—Peckham, J., said: “(2) The
next question which arises is whether this power of attorney was
revoked by the war which broke out between the two sections of the
country in 1861.
“ Lieutenant Ransom, although one of the last officers to go out, did
resign his commission in the army of the United States and went
south and entered the army of the Confederacy, in which, before the
close of the war, he attained high rank. His wife followed him, so
that during the war they were both inside the lines of the Con-
federacy.
“We are of opinion that the war did not revoke the power of attor-
ney executed by Mrs. Ransom and her husband. It is not every
SUSPENSION OR DISSOLUTION OF CONTRACT.
367
agency that is necessarily revoked by the breaking out of a war be-
tween two countries, in which the principal and agent respectively
live. Certain kinds of agencies are undoubtedly revoked by the
breaking out of hostilities. Agents of an insurance company, it is
said, would come within that rule (Insurance Company v. Davis, 95
U. S. 425, 429).
*
“It is entirely plain, as we think, that the mere fact of the break-
ing out of a war does not necessarily and as a matter of law revoke
every agency. Whether it is revoked or not depends upon the cir-
cumstances surrounding the case and the nature and character of the
agency. This case shows that in 1859, at the time when the power
of attorney was executed, Lieutenant Ransom and his wife were
desirous of realising their share of the value of the land in contro-
versy. It was vacant, unimproved land in the city of Washington,
and the charge for taxes was quite burdensome. The parties desired
to realise the money. No sale of the property was effected from that
time until the latter part of 1864 or early part of 1865. There is no
evidence of any such change of circumstances as would naturally
suggest a revocation of the authority to sell, but, on the contrary,
the testimony is otherwise. It appears to have been to the interest
of all parties to sell, and thus to free themselves from a constant
source of expense."
Trotter, pp. 227–229.
The treaty of peace with Great Britain prevents the operation of
the statute of limitations of Virginia on British debts which were
incurred before the treaty.
Moore's Digest, vol. 7, p. 254, citing Hopkirk v. Bell, 3 Cranch, 454.
Where a citizen of a State adhering during the war of the rebellion
to the national cause brought suit, after the war, against a citizen
residing during the war within the limits of an insurrectionary State,
it was held that the period during which the plaintiff was prevented
from suing by the state of hostilities should be deducted from the
time necessary to bar the action under the statute of limitations.
Moore's Digest, vol. 7, p. 254, citing Hanger v. Abbott, 6 Wall. 532.
See, also, The Protector, 12 Wall. 700 ; Semmes v. Hartford Ins. Co., 13
Wall. 150; Brown v. Hiatts, 15 Wall. 177; University V. Finch 18
Wall. 106.
1
The effect of war is to dissolve a partnership between citizens of
hostile nations.
Moore's Digest, vol. 7, p. 250, citing The William Bagaley, 5 Well. 377.
See, also, Griswold v. Waddington (1819), 16 Johns. 438. As to ex-
ceptions, see Matthews v. McStea (1875), 91 U. S. 7.
368
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A transfer of property to a creditor by an enemy debtor, though
made to an agent of the creditor and in payment of a debt con-
tracted before the war, is void, and can not be made lawful by any
ratification.
Moore's Digest, vol. 7, p. 251, citing United States v. Grossmayer, 9
Wall. 72.
A sale of real estate during the rebellion, under a power in a deed
of trust previously given to secure the payment of promissory notes
of the grantors in the deed, is valid, though said grantors at the time
of the sale were citizens and residents of one of the States declared
to be in insurrection.
Moore's Digest, vol. 7, p. 251, citing University 1. Finch, 18 Wall. 106.
In May, 1859, Lieutenant R., of the United States Army, who was
then stationed at Carlisle Barracks, in Pennsylvania, and his wife,
executed a power of attorney to the latter's brother to convey their
interest in certain lands in the city of Washington, D. C. After the
civil war broke out, R. who was a native of North Carolina, resigned
his commission and entered the Confederate service. His wife ac-
companied him to the South. Her brother remained with the United
States Army, of which he was an officer. During the war the lands
were sold and a deed for them was given by him under the power of
attorney. The purchase money was duly paid and the share of Mrs.
R. was paid over to her while she was within the lines of the Southern
army with her husband. Some years afterwards, after the death of
R. and his wife, a bill was filed by their children to have the deed
executed by Mrs. R.'s brother under the power of attorney declared
null and void as a cloud upon the title of the complainants in the
property. In support of this petition it was argued, among other
things, that the power of attorney was revoked by the war which
existed between the sections in which the principals and the agent,
respectively, lived. It was held, however, that the war did not revoke
the power of attorney. War did not, said the court, necessarily
revoke every agency existing between inhabitants of the contending
countries. Certain kinds of agencies were undoubtedly revoked by
the breaking out of hostilities. It had been held that the agent of an
insurance company came within the rule (Insurance Company v.
Davis, 95 U. S. 425, 429); and Mr. Justice Bradley, in delivering
the opinion in that case, had said that, in order that the agency
might subsist during the war, it must have the assent of the parties.
This remark was made with reference to the case then before the
court in which the agent of a New York company, who resided in
Virginia, entered the Confederate service and thereafter refused to
receive premiums, on the ground that he had no receipts from the
SUSPENSION OR DISSOLUTION OF CONTRACT.
369
company, and that the money, if received by him, would be con-
fiscated by the Confederate government. A claim was subsequently
made for the insurance, on the ground that the insured was guilty
of no laches, and that at the close of the war the policy revived. The
court held that the agency was revoked by the war, since its continu-
ance would have involved an active and continuous business of such
a nature that it could not be carried on during the war, where the
principal and the agent resided in different belligerent countries.
The general subject of contracts and business between the citizens of
States at war was examined with great care in Kershaw v. Kelsey,
100 Massachusetts, 561, by Mr. Justice Gray, who held that, while
the law of nations prohibited all contracts involving intercourse be-
tween citizens of the two belligerents, the prohibition would not be
carried further, and that the court was not disposed to declare un-
lawful contracts such as had not previously been adjudged to be
inconsistent with a state of war. The Supreme Court thought that
the power of attorney in the present case was not revoked by the
war, and that, as it was manifestly the interest of the principal that
the agency constituted before the war should continue, his assent to
its continuance would be presumed. And the act of the agent was
ratified by the receipt by the principal of the money obtained by
the sale.
woore's Digest, vol. 7, pp. 251, 252, citing Williams v. Paine (1897).
169 U. S. 55; opinion by Mr. Justice Peckham.
During the war, a sale of land within the Union lines was made
under a deed of trust given before the war to secure the payment of
a debt. The grantor, at the time of the sale, was a resident within the
Confederate lines. Held, that the sale was valid.
Moore's Digest, vol. 7, p. 252, citing Mitchell v. Nodaway County, 80
Mo. 257.
With regard to life insurance contracts, it was held that, as the
companies elected to insist upon the conditions of time as to the pay-
ment of premiums, the payment of which had been prevented by the
existence of war, the policies must be considered as extinguished by
nonpayment of the premiums, but that the insured were entitled ex
aequo et bono to recover the equitable value of the policies, with in-
terest from the close of the war.
Moore's Digest, vol. 7, p. 252, citing New York Life Ins. Co. v.
Statham (1876), 93 U. S. 24; Semmes v. Hartford Ins. Co. (1871),
13 Wall. 158; New York Life Insı. Co. v. Davis (1877), 95 U. S. 425;
Abell v. Penn Mutual Life Ins. Co. (1881), 18 W. Va. 400.
CESSATION OF INTEREST ON OBLIGATIONS.
The tendency of modern law, both private and international, is
to pass away from abstractions and technicalities, and to take cog-
nizance of realities and actual conditions as they exist here and now.
It is conceived, then, that the only necessary measure, in accordance
with an equitable interpretation of the doctrine of non-intercourse,
is to suspend merely the payment of interest until the resumption of
peace. This suspension, moreover, need not amount to a total dis-
continuance, for it is not conceivably antagonistic to the interests of
law or national policy to permit the interest to accrue till the end
of hostilities. The network of commercial transactions has become
so far-reaching and complex, and the interests involved in trading
relationships so great, that it is necessary to afford such security to
foreign investors as will encourage them to furnish capital for large
business undertakings. Of course, the legal position of a company
which provides a belligerent with means for the prosecution of war
will be quite different.
Phillipson, pp. 101, 102.
Further, debenture-holders ought to be permitted, on the conclu-
sion of peace, to sue for arrears of interest accrued on the debentures
during the war. If any time be fixed for payment, interest ought to
run till that time. In the case of perpetual debenture stock, interest
should continue to run throughout the war. There are, indeed, sey-
eral old cases to the contrary, but they were decided at a time when
it was the practice even to confiscate debts. But, consistent with the
spirit of the present age, a more liberal practice has of recent years
prevailed; and various important relaxations and modifications of
the older doctrine have been introduced. In the South African War,
for example, interest was regularly paid to debenture-holders in the
South African mining companies, in spite of the decision that a com-
pany incorporated under the laws of the Transvaal and carrying on
business there was vested with enemy character.
Phillipson, 1). 104; Janson. v. Driefontein Consolidated Mines, Ltd.,
A. C. 489, 505.
No interest runs on debts [Du Belloix v. Lord Waterpark (1822),
1 Dowl. & R. 16; Mayer v. Reed (1867), 37 Gallison, 482.] or mort-
gages [to alien enemies]. [Hoare v. Allan (1789), 2 Dallas, 102.]
Oppenheim, vol. 2, p. 137.
370
CESSATION OF INTEREST.
371
Limitation does not run during the war.
On the other hand,
though the principal of a debt survives, interest, even if agreed upon,
will not run whilst hostilities continue, except “when an agent ap-
pointed to receive the money resides within the same jurisdiction with
the debtor " or " when one of several joint debtors resides within the
same country with the creditor, or with the known agent of the
creditor.”
Latifi, p. 51; Hanger v. Abbott, 6 Wall. 532; Hoare v. Allen, 2 Dall.
102; Ward 2. Smith, 7 Wall, 452; Paul et ux. Extx. of Dean v. Chris-
tie, 4 Harris and McHenry 161.
Decisions in the United States.
It has also been held in the United States that no interest can be
l'ecovered after the peace for the time during which the debtor was
prevented from paying the principal by the legal doctrine that all
commercial communication with enemy subjects is forbidden: Hoare
v. Allen, 2 Dallas 102, Scott 498; Foxcroft v. Nagle, 2 Dallas 182,
Scott 500, and see C. N. Gregory in 25 Law Quarterly Review 297,
314. But this rule does not apply when the creditor resides or has
an agent in the country of the debtor, for then the debtor might have
paid the interest, and it would not have been his offense if it has been
sent to the enemy country; Conn. v. Penn, 1 Peter C. C. 496; Den-
niston v. Imbrie, 3 Washington C. C. 396. But the agent must have
been appointed before the war: U.S. v. Grossmayer, 9 Wallace 72.
See also Small's Administrator v. Lumpkin's Executor, 28 Grattan
832, Scott 538.
Westlake, vol. 2, pp. 52, 53.
1
Shares and debentures of corporations.
The shares and debentures of companies incorporated under British
law which are held by enemy subjects at the outbreak of a war will
not cease to exist, but must continue as properties, whatever be de-
cided as to the ownership of those properties. There is therefore no
alternative but either to confiscate them for the benefit of the British
government, which in many cases would be contrary to treaty and in
all cases is now out of the question, or to regard the enemy share-
holders and debenture holders as continuing to be such. To strike out
the enemy subjects from the list of persons interested, without more,
would practically be to confiscate their properties for the benefit of
the other shareholders, a proceeding which would be grotesque in its
injustice, and which would fall within the spirit if not within the
letter of treaties prohibiting confiscation. But the dividends on the
shares and the interest on the debentures, so far as not represented by
coupons payable to bearer and of which therefore the ownership
would not be apparent to the companies, cannot be paid to the
enemy subjects during the war. After its close they will be entitled
372
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
to claim the back dividends and interest, but not to interest on de-
bentures after their maturity, subject, in the case of shareholders, to
their paying any calls made in the meantime.
Westlake, vol. 2, p. 53.
Debts.-Debts already subsisting between individuals divided by
the line of war are suspended during the war, both as regards the
right of action of the creditor and the duty of payment on the part
of the debtor. Any such payment would indeed be illegal if it
involved a transmission of money to the enemy country. Nor will
any interest, even though otherwise payable, be due to the creditor,
in respect of the period covered by the war; for the reason that
interest is payable “ for the forbearance of money," whereas in time
of war payment cannot be exacted, and there is therefore no forbear-
ance. But this will not apply where the debt is payable at a fixed
date---as is usual in cases where the debt is secured by mortgage or
other form of security-for in such a case interest is due not for
forbearance but by virtue of the original agreement; although even
in this case, if the agreed date for payment of the principal should be
reached during the war no further interest will be due. Subject to
these reservations, the right of the creditor to recover both principal
and interest will revive on the return of peace. Nor, if the debtor
is sued, will it be open to him to set up any plea of limitation, as
regards the period covered by the war; for the reason that during
that period the right of action is deemed to have been in abeyance.
Debts contracted during the continuance of war. are of course, irre-
coverable, save in the case of transactions specially excepted under the
jus betti.
Cobbett, pt. II, pp. 86, 87.
The suspension during the war of interest on an obligation depends
upon the relations of the parties to the obligation to each other
directly or through an agent.1
G. G. Wilson in 40 Cyc. p. 323.
Interest on pecuniary contracts suspended by war.
The American law is that no interest is recoverable after peace for
the time during which the debtor was prevented from paying the
principal debt by the law which forbids commercial intercourse
with the enemy (Hoare v. Allen, 2 Dallas, 102; Foxcroft v. Nagle,
ibid. 182). But this rule only applies to cases where interest is re-
coverable as damages; for interest, expressly stipulated for in the
contract, is not affected by war (Yeaton v. Berney, 62 Ill. 61; Lash v.
1 See Interest, 22 Cyc. 1562. See also Kent v. Chapman, 18 W. Ya. 485; Rogers v.
Arthur, 20 Fed. Cas. No. 12,006.
A debtor cannot plead in claiming reduction of interest that the Embargo Act of his
country prevented payment of the debt. Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 587.
.
CESSATION OF INTEREST.
373
1
Lambert, 2 American Reports, 142; but see Brown v. Piatts, 15
Wall. 185, for a contrary view). Where the debtor, or one of several
joint debtors, resides in the same country as the creditor or his duly
authorized agent, provided such agent was appointed before the war
(United States v. Grossmayer, 9 Wall. 72), interest on the debt is
not suspended by war. (Ward v. Smith, 7 Wall. 452, 455.) This is
also the case where a surety for an enemy principal resides in the
same country as the creditor, and the action is brought against him
(Bean v. Chapman, 62 Ala. 58; Paul v. Christie, 4 Harr. & M. (Md.)
161). An agreement by a debtor after peace to pay interest for the
time during which war continued is binding (Inglis v. Nutt, 2 Des-
auss. Eq. (Supreme Court) 623; Bainbridge v. Wilcocks, Baldw.536).
But such an agreement in England would probably require consid-
eration, if not expressed in a deed, although it would hold good in
Scotland (Trotter's Law of Contract in Scotland, pp. 9, 46, 54). In
Rowe v. Hardy, 75 American State Reports, 811, it was held that
where a judgment had been recovered upon a debt, both for prin-
cipal and interest, it was error in an action on such judgment to abate
the interest on the principal debt for the period of the Civil War.
There is some authority for assuming that the English law is the
same as the American. In Du Belloix v. Lord Waterpark, 1822, 1
Dow. & Ryl. 16, Abbott, C. J., said—“But there is another objection
to the plaintiff's recovering interest on the debt" (as damages),
during the greater part of that time he was an alien enemy, and
could not have recovered even the principal in this country, and, at
all events, during that period of the time the interest could not have
run, and it would even have been illegal to pay the bill whilst the
plaintiff was an alien enemy” (ibid. at p. 19).
Trotter, pp. 49, 50.
66 for
Interest did not run during war on a mortgage debt due by an
inhabitant of the United States to a British subject. The reporter
in a note states that this had been the uniform holding in the courts
of Pennsylvania.
Moore's Digest, vol. VII, p. 252; Hoare v. Allen, Supreme Court of Pa.,
1789, 2 Dall. 102.
This principle was affirmed in the case of Foxcraft and Galloway v. Nagle,
Supreme Court of Pa., 1791, 2 Dall, 132.
See, to the same effect, Brown v. Hiatts, 15 Wall. 177.
See, Moore, Int. Arbitrations, IV. 4313.
There should be no abatement of interest on a judgment during
the war, the counties in which the plaintiff and defendant respectively
lived being judicially known not to be territories which were hostile
to one another.
Kent, Paine & Co. v. Chapman, 18 W. Va. 485.
Moore's Digest, vol. VII, pp. 252, 253.
LICENSES.
Either country may license trading with the other under such
restrictions as it may deem best. Hamilton v. Dillin, 21 Wall. 73;
Snell v. Dwight, 120 Mass. 9.
Kent, vol. 1, p. 81, note.
A single belligerent may grant licenses to trade with the enemy,
and dilute and weaken his own rights at pleasure, but it is other-
wise when allied nations are pursuing a common cause.
The com-
munity of interests and object and action creates a mutual duty not
to prejudice that joint interest; and it is a declared principle of the
law of nations, founded on very clear and just grounds, that one of
the belligerents may seize and inflict the penalty of forfeiture on
the property of a subject of a co-ally, engaged in a trade with the
common enemy, and thereby affording him aid and comfort whilst
the other ally was carrying on a severe and vigorous warfare. It
would be contrary to the implied contract in every such warlike con-
federacy, that neither of the beligerents, without the other's con-
sent, shall do anything to defeat the common object.
Kent, vol. 1, p. 83; The Nayade, 4.C. Rob. 251; The Neptunus, 6 C.
Rob. 403.
The effect of a license given by the enemy to the subjects of the ad-
verse party, to carry on a specified trade, has already been consid-
ered, in respect to the light in which it is viewed by the government
of the citizens accepting it. A very different effect is given to these
licenses by the government which grants them, and they are regarded
and respected as lawful relaxations or suspensions of the rules of
war. It is the assumption of a state of peace to the extent of the
license, and the act rests in the discretion of the sovereign authority
of the state, which alone is competent to decide how far considera-
tions of commercial and political expediency may, in particular cases,
control the ordinary consequences of war. In the country which
grants them, licenses to carry on a pacific commerce are stricti juris,
as being exceptions to a general rule; though they are not to be con-
strued with pedantic accuracy, nor will every small deviation be
held to vitiate the fair effect of them. An excess in the quan-
tity of goods permitted to be imported might not be considered as
noxious to any extent; but a variation in the quality or substance of
the goods might be more significant. Whenever any part of the
374
LICENSES.
375
trade assumed under the license is denuded of any authority under
it, such part is subject to condemnation.
Another material circumstance in all licenses is the limitation of
time in which they are to be carried into effect, for what is proper
at one time may be very unfit and mischievous at another time.
Where a license was limited to be in force until the 29th of Septem-
ber, and the ship did not sail from the foreign port until the 4th of
October, yet, as the goods were laden on board by the 12th of Septem-
ber, and there was an entire bona fides on the part of the person
holding the license, this was held to be legal. But where a license
was to bring away a cargo from Bordeaux, and the party thought
proper to change the license, and accommodate it to another port
in France, it was held by the English admiralty, in the case of the
Twee Gebroeders, that the license was vitiated, and the vessel and
cargo were condemned. It has also been held that the license must
be limited to the use of the precise persons for whose benefit it was
obtained. The great principle in these cases is, that subjects are not
to trade with the enemy without the special permission of the govern-
ment; and the material object of the control which the government
exercises over such a trade is that it may judge of the particular per-
sons who are fit to be intrusted with an exemption from the ordinary
restrictions of a state of war.
Kent, vol. I, pp. 178-180; The Cosmopolite, 4 C. Rob. 8; The Abigail
Stewart, Vice-Adm. 360; Schroeder 1. Vaux, 15 East, 52; 3 Camp. 83;
The Twec Gebroeders, Edw. Adm. 95; The Jonge Johannes, 4 C.
Rob. 263.
.
There are but two exceptions to this general rule interdicting trade
with the enemy: First, the mere exercise of the rights of humanity,
and, second, the trade sanctioned by the license or authority of the
government. The first of these exceptions would permit intercourse
with the enemy, to such a limited extent, and of so rare an occurrence,
as to require no particular discussion; the second, results from the
fact, that on certain occasions it is highly expedient for the state to
permit an intercourse with the enemy, by commerce or otherwise; but
the state alone, and not individuals, must determine when it shall be
permitted, and under what regulations. Without such direct permis-
sion of the state, no commercial intercourse with the enemy is allowed
to subsist. (Wheaton, Elem. Int. Law, pt. 4, ch. 1, $13; Duer, On In-
surance, vol. 1, p. 556; The Hoop, 1 Rob. Rep., pp. 199, 200; Manning,
Law of Nations, p. 123; Bello, Derecho Internacional, pt. 2, cap. 2,
$3; Heffter, Droit International, $123; Wildman, Int. Law, vol. 2, p.
245; Jacobsen, Seerecht, $$719–731; Phillimore, On Int. Law, vol. :?
$75.
Halleck, p. 498.
1
376
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
2
License of withdrawal.
If it be admitted that it is the duty of a government to facilitate
the withdrawal of its own citizens and their property from an enemy's
country, the question next to be considered is the propriety of requir-
ing the citizens to procure a license from their own government for
the transportation of such property. On this question Mr. Duer re-
marks: “It is, doubtless, right and necessary that a merchant, not
resident in an enemy's country, who desires, at the commencement of
a war, to withdraw his property and effects, should obtain a license
from his own government. He is guilty, otherwise, of a voluntary
trading. The good faith of a person who has the power to apply for a
license, and neglects the duty, is liable to just suspicions; and the ex-
press permission of the government is, in such cases, the only adequate
security against abuse and fraud. But the propriety of requiring a
person, who is seeking to escape from a hostile country, to continue a
residence that exposes his person to imprisonment, and his property
to seizure, until a license from his own government can be obtained,
so far from being evident, can, by no means, be admitted. His ability
to return—to save himself and his property-may depend upon meas-
ures that, to be effectual, must be immediate; and the necessary delay
in procuring a license would operate, in most cases, to defeat the exe-
cution of the design.” Mr. Duer, therefore, adopts the conclusion that
a license is not in all cases necessary, and "that the property of
subjects withdrawing themselves, in good faith, from a hostile
country, within a reasonable time after knowledge of the war, is
not stamped with the illegal character of a trading with the enemy;
but is to be considered, by a just exception from the general rule,
as exempt from confiscation. Such would be the probable decision
of the question in the English courts of prize; nor is it by any means
certain that an opposite determination would be made in those of
the United States. The exact question has not yet been determined
by the supreme tribunal; nor is its decision involved as a necessary
consequence in the cases that have hitherto occurred."
Halleck, pp. 502, 503; Duer on Insurance, vol. 1, pp. 564–566; The
Madonna della Gracie, 4 C. Rob. 198; The St. Lawrence, 9 Cranch,
121; Armory v. McGregor, 15 Johns, 24; Phillips on Insurance, vol.
>>
1, p. 84.
License from the enemy.
If a vessel belonging to one of the belligerents prosecutes a voyage,
even to a neutral port, under a license from the government of the
enemy, both ship and cargo, while they remain under the protection
of such license, are liable to capture and confiscation. Such con-
demnation results from the presumption, not to be resisted, that the
license is granted by the enemy for the furtherance of his own in-
terests, and the citizen or subject who lends himself to the promotion
LICENSES.
377
of that object, by accepting such license, violates the plainest duties
of his own allegiance. As has already been stated, individual mem-
bers, composing the state or body politic, are prohibited from all
commercial intercourse with the public enemy, unless sanctioned by
the express authority of their own government. In the words of Sir
William Scott, no principle should be held more sacred than that an
intercourse with the enemy ought not to be allowed to subsist on any
other footing than that of the direct permission of the state. The
reasons of this rule are fully set forth in the opinion of Mr. Justice
Story, in the case of The Julia, which opinion was adopted, in ex-
tenso, by the supreme court of the United States. At the threshold
of his opinion, he lays down the fundamental proposition that, “in
war, all intercourse between the subjects and citizens of the belliger-
ent countries is illegal, unless sanctioned by the authority of the gov-
ernment, or in the exercise of the rights of humanity.” That a per-
sonal license from an enemy must be regarded as an implied agree-
ment with such enemy, that the holder of such license will conduct
himself in a neutral manner, and avoid any hostile acts toward such
enemy. That it is, therefore, a violation of the laws of war, and
of his duties to his own government. “Can an American citizen,"
he asks, “ be permitted, in this manner, to carve out for himself a neu-
trality on the ocean, when his country is at war? Can he justify
himself in refusing to aid his countrymen, who have fallen into the
hands of the enemy on the ocean, or decline their rescue? Can he
withdraw his personal services, when the necessities of the nation re-
quire them? Can an engagement be legal, which imposes upon him
the temptation or necessity of deeming his personal interests at va-
riance with the legitimate objects of his government?” Incomplete-
ness of a voyage, under license from the enemy, is no defense, for
the vessel is liable to capture at the instant the voyage under such
license is commenced. To say that the vessel could not be seized till
the voyage was completed or abandoned, would be, in effect, saying
that the right of capture only exists when the power of making it is
at an end. In all cases where the object of the voyage is prohibited,
its inception with the illegal intent, completes the offense to which
the legal penalty attaches. This case of illegal trading, under a
license from the enemy, is only a particular application of a univer-
sal rule. Nor is it any defense to allege or prove that the trade is not
subservient to the enemy's interest. The condemnation of such
licensed vessel and cargo rests upon the broad ground of the illegality
of such voyage, and that the mere sailing under the enemy's license
subjects the property to confiscation. The acceptance of such hos-
tile license, by any individual, of a belligerent country, is an act
inconsistent with the duties of his allegiance; it is an attempt, on his
part, to clothe himself with a neutral character by favor of the other
110678-19-25
i
378 . SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
belligerent, and thus to separate himself, without the sanction of his
own government, from the common character of his country, and
such act is, in itself, a sufficient ground of condemnation. (Wildman,
Int. Law, vol. 2, p. 259; Phillimore, On Int. Law, vol. 3, § 69; Duer,
On Insurance, vol. 1, p. 587; The Aurora, 8 Cranch. Rep., p. 441; The
Hiram, 1 Wheaton, Rep., p. 440; The Ariadne, 2 Wheat. Rep., p. 143;
Colquhoun v. N. Y. F. Insurance Co., 15 Johns. Rep., p. 357; Ogden
v. Barker, 18 Johns. Rep., p. 87; Craig v. U. S. Ins. Co., 1 Peter.
C. C. R., p. 410.)
Halleck, pp. 509-511.
Licenses to trade.
A license is a kind of safe-conduct, granted by a belligerent State
to its own subjects, to those of its enemy, or to neutrals, to carry on a
trade which is interdicted by the laws of war, and it operates as a dis-
pensation from the penalties of those laws, with respect to the State
granting it, and so far as its terms can be fairly construed to extend.
The officers and tribunals of the State under whose authority they
are issued, are bound to respect such documents as lawful relaxations
of the ordinary state of war; but the adverse belligerent may justly
consider them as per se a ground of capture and confiscation.
Licenses are necessarily stricti juris, and cannot be carried beyond
the evident intention of those by whom they are granted; neverthe-
less, they are not construed with pedantic accuracy, nor will their
fair effect be vitiated by every slight deviation from their terms and
conditions. Much, however, will depend upon the nature of the
terms which are not complied with. Thus, a variation in the quality
or character of the goods will often lead to more dangerous conse-
quences than an excess of quantity. Again, a license to trade, though
safe in the hands of one person, might become dangerous in those of
another; so, also, with respect to the limitations of time and place
specified in a license. Such restrictions are often of material impor-
tance, and cannot be deviated from with safety.
(Manning Law of Nations, 123; Wheaton, Elem. Int. Law, pt. 4,
Ch. 2, § 26; Kent, Com. on Am. Law, Vol. 1, pp. 163–4; Grotius, De
Jure Bell. ac Pac., lib. iii cap. xxi. § 14; Duer on Insurance, vol. 1,
pp. 595–619. The Abigail, Stewart V. Ad. R., 360; The Cosmopolite,
4 Rob., 8; The Twee Gebroeders, 1 Edw. R., 96; Schroeder v. Vaux,
15 East., 52; The Jorge Johannes, 4 C. Rob. 263; Pistoye et Duverdy,
Traité des Prises, tit. 6, ch. 2, sec. 6.)
Halleck, pp. 675, 676.
General license.
A general license is a suspension or relaxation of the exercise of
the rights of war, generally or partially, in relation to any community
or individuals, liable to be affected by their operation. It must
LICENSES.
379
emanate from the sovereignty of the State, for the supreme authority
alone is competent to decide what considerations of political or com-
mercial expediency will justify a suspension or relaxation of its
belligerent rights. That branch of the government to which, from
the form of its constitution, the power of declaring or making war
is entrusted, has an undoubted right to regulate and modify, in its
discretion, the hostilities which it sanctions. This may be done by
a general ordinance, by instructions to armed vessels, or by licenses
issued to certain communities or individuals exempting them from
capture. . In England, licenses are either granted directly by the
Crown, or by some subordinate officer, to whom the authority of the
Crown has been delegated, either by special instructions or under
the provisions of an Act of Parliament. In the United States, as a
general rule, licenses are issued under the authority of an Act of
Congress, but in special cases, and for purposes immediately con-
nected with the prosecution of a war, they may be granted by the
authority of the President, as commander-in-chief of the military and
naval forces of the United States.
Halleck, pp. 676, 677; Vandyke v. Whitmore, 1 East., 475; Taulman v.
Anderson, 1 Taunt. 227; Shiffner i. Gordon, 12 East., 296; The
. Charlotte,' 1 Dod. 387.
Special license.
For the same reasons, a special license to individuals for a par-
ticular voyage, or for the importation or exportation of particular
goods, must, as a general rule, also emanate from the supreme au-
thority of the state. But there are exceptions to this rule growing
out of the particular circumstances of the war in particular places.
The governor of a province, the general of an army, or the admiral
of a fleet, may grant licenses to trade within the limits of their own
commands, and such documents are binding upon them and upon all
persons who are under their authority, but they afford no protection
beyond the limits of the authority of those who issue them. Thus,
in the war between the United States and the republic of Mexico, the
governor of California and the commander of the Pacific squadron,
issued such licenses, but it was not pretended that such protection
extended beyond the limits of their respective commands. The
peculiar circumstances of the case, the great distance from the seat of
the supreme federal authority, the scarcity of provisions and sup-
plies, and the want of American vessels on that coast, were deemed
sufficient reasons for the exercise of that power.
Halleck, p. 677 ; Wheaton, Elem: Int. Lau, pt. iv. ch. 2. § 27; Letter
of Secty. of California, 31st Cong., 1st sess. H. of R., Ex. Doc., No.
17, p. 671; Cushing, Opinions of U. S. Attys-Gen., vol. vi. p. 630.
380
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Judicial decisions.
Licenses have frequently been granted during the operations of a
war, not only for the protection of an enemy trading in the country
of a belligerent, but to authorise subjects to trade with the enemy;
and the cases relative to their authority and legal effect are numerous,
both in the reports of courts of Admiralty and of common law. The
leading case on this subject is that of the 'Hope,' an American ship,
laden with corn and flour, and captured whilst proceeding from the
United States to the Spanish peninsula, under the protection of in-
struments granted by the English admiral on the Halifax station, and
the British consul at Boston. In pronouncing judgment in that case,
Sir William Scott remarked, that no consul in any country, par-
ticularly in an enemy's country, is vested with power, in virtue of
his office, to exempt the property of enemies from the effects of hos-
tilities; and that an admiral could restrain the ships under his im-
mediate command from committing acts of hostility, but could grant
no safe-conduct of this kind beyond the limits of his own station.
But such acts might be regarded as sponsiones, or agreements sub
spe rate, to which a subsequent ratification, by the proper authority,
would give validity. It was shown that these acts of its officers had
been conformed by an Order in Council, and a restitution of the
property was decreed accordingly. But, in the case of the Charles,
and other similar cases, where the safe conducts had been signed by
the English admiral, and also by the Spanish minister in the United
States, but not 'confirmed by the British Government, it was decided
that the licenses afforded no protection, being issued without proper
authority. So, also, in cases of safe-conducts granted by the British
minister, in the United States, to American vessels sailing with pro-
visions to the island of St. Bartholomew. All were condemned where
the licenses were not expressly included within the terms of the con-
firmation by the Order in Council.
Halleck, p. 678; The Cosmopolite, 4 C. Rob. 11; The Hope, 1 Dod. R.,
226; Johnson v. Sutton, Doug. R., 254.
*
English decisions.
There are very few American decisions on the subject of licenses,
and there is a great want of uniformity in those of the British Ad-
miralty.
Prior to the peace of Amiens licenses were re-
garded as an act of special grace, and most strictly interpreted, but,
on the renewal of the war, the issuing of licenses by England was re-
garded as a matter of national policy, rather than personal favor.
The courts, in consideration of this policy, gave to these instruments
the largest interpretation possible. "Most of the reported cases on
the subject of licenses, were decided during the period that this
liberal doctrine prevailed, and in many of them it is a matter of
LICENSES.
381
extreme difficulty to say, whether the determination was governed
by the peculiar circumstances and character of the war, or by reasons
of general and permanent application. It is evident, however, that
it is only rules of a permanent character that can be justly said
to form a part of the existing law, and that it would be useless to
state those that were, in truth, occasional exceptions, arising from
a state of things 'so extraordinary, that it is highly improbable
it will ever again occur.”
Halleck, p. 678, 679; The Goede Hoop, 1 Edw., 328; The Juno, 2 C. Rob.,
117; Morgan v. Oswald, 3 Taunt., 555; Flindt v. Scott, 5 Taunt., 693:
Intentions of grantor.
Although a license may have been issued by competent authority,
and on the good faith of the party obtaining it, in order to render
it available for the protection of the property to which it relates,
the intentions of the grantor, as expressed in the license, must be
pursued in its mode of execution, and there must be an entire good
faith on the part of the user in executing it. And although, as before
remarked, licenses are not to be construed with a literal and pedantic
accuracy, yet no greater latitude of interpretation is permitted than
corresponds with the intentions of the grantor, fairly understood;
no other or greater deviation is allowed, than it may be justly pre-
sumed the grantor, with a knowledge of the circumstances, would
himself have sanctioned. “It is a mistake," says Duer, " to suppose
that the rights of the user may not be prejudiced by a construction
of the grant that is merely erroneous. It is absolutely essential,
that the will of the grantor shall be observed; so that, that only
shall be done which he intended to permit; whatever he did not
mean to permit is absolutely interdicted. Hence, the party who
uses the license engages, not only for fair intentions, but for an
accurate interpretation and execution of the grant.
Halleck, p. 680; The Cosmopolite, 4 C. Rob., 11; The Jonge Johannes,
4 C. Rob., 263; The Vriendschap, 4 C. Rob., 96; Duer, on Insurance,
vol. 1, pp. 598, 599.
Representations of grantee.
The validity of a license depends not only on the sufficiency of
the authority by which it is granted, but also on the good faith of
the party to whom it is issued. Like every other grant, although
issued in due form, and by the proper authority, a license may be
vitiated by fraudulent conduct in obtaining it. The misrepresenta-
tion or suppression of material facts-of faets that, if known, would
probably have influenced the discretion of the grantor-renders
the license a nullity, and exposes the property it is invoked to pro-
tect to certain condemnnation. Nor is it necessary, in order to in-
382
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
validate the license, that such misrepresentations or suppressions
of material facts should, in all cases, involve an imputation or sus-
picion of fraud. Thus, where the agent who procured the license
was described as a merchant of London, but it appeared on trial
that, when the license was granted, he was, in fact, a resident of a
foreign country, the error was held to invalidate the license. So,
where a license was granted to a person by name, describing him as
a British merchant, and it was found that he, in person, visited
Holland, at that time an enemy's country, mixed and incorporated
himself, when there, in the national commerce, and exported the
goods as a Dutch merchant, instead of importing them as an English
merchant, the license was regarded as invalidated and his property
confiscated.
Halleck, p. 680; The Clio, 6 C. Rob., 69, The Jonge Klassina, 5 C. Rob.,
269; Klingender v. Bond, 14 East., 484.
Persons entitled to use a license.
The first material circumstance to be considered in the execution
of a license, with respect to the intentions of the grantor and the
good faith of the user, is, the persons entitled to use it. A license
is not a subject of transfer or assignment, and however general
may be the terms in which the grantees are described, those who
claim for their property its protection must show that the applica-
tion on which it was issued was made in their behalf, and that
the applicant named in the license was, in truth, their agent. But
if granted to a particular person by name, in behalf of himself and
others, it is not necessary that the person named should have any
share or interest in the property to which the license relates; it is
sufficient if he acted as agent of those to whom its exclusive use is
appropriated. If the license is, by express words, made negotiable,
or if no mention whatever is made of the persons upon whose ap-
plication it is granted, or by whom it is to be used, it is a legitimate
subject of transfer and sale, and the purchaser is as fully protected
as if it had been granted to him on his personal application.
Halleck, p. 680, 681; Feise v. Thompson, 1 Taunt. 122; Warin v. Scott,
4 Taunt. 605; Robinson v. Moris, 5 Taunt. 725; Barlow v. M’Intosh,
12 East. 311; Busk 1. Bell, 16 East. 3; Rawlinson v. Janson, 12
East. 223; The Jonge Johannes, 4 C. Rob. 263; The Acteon, 2 Dod.
48; The Louisa Charlotte, 1 Dod. 308; Fenton v. Pearson, 15 East.
419; Morgan v. Oswald, 3 Taunt. 556; Flindt v. Scott, 5 Taunt. 674.
Where the grantee acts as agent for others.
But where the license is not made negotiable, and the persons
named in the license obtained it in their own names and not as the
representatives and agents of others—the license being for them-
selves, their agents, or holders of their bills of lading—it cannot
LICENSES.
383
protect the property of others for whom the grantees act as agents,
and in which they are not interested. Thus, a license to B. & S.
and their agents will not protect the property of others for whom
B. & S. may see fit to act as agents. But where a license is issued to
B., S. & Co., meaning under that denomination to include persons
who had agreed to take part in the shipment made under such license,
such persons are held to be protected.
· Halleck, p. 681; The Jonge Johannes, 4 C. Rob. 263; The Christina
Sophia, 4 C. Rob. 267; Feize 2. Waters, 2 Taunt. 248.
Character of vessels.
The second point to be considered, in determining upon the proper
execution of a license, is the character of the vessel. The national
character of the ship, as described in the license, is, in most cases, a
condition necessary to be fulfilled. Where the license directs the
employment of a neutral vessel belonging to a particular nation, the
substitution of a neutral ship of a different State, standing in the
same political relations to the belligerent powers, would, probably,
not be regarded as prejudicial. The same may be said of the em-
ployment of two ships, when the terms of the license refer only to
one, if both vessels bear the same national character, and there be
no variation in the quantity or quality of the goods described in the
license. But, in both these changes, a good and satisfactory cause
must be shown. If a neutral ship is mentioned in the license, the
employment of a ship of the State issuing the license is considered
an essential deviation, which will lead to a condemnation. So, the
employment of a ship belonging to the enemy, when not authorised
by the license, is in all cases noxious and fatal. When the license
authorises the importation of goods from an enemy's country, in
an enemy's ship, although confined, in terms, to the goods, by the
just construction of law, it is extended to the vessel also. For
the necessary effect of such a license is to legalise the voyage as
described, in all its incidents, and hence the ship is just as much a ,
legitimate object of protection as the cargo which is to be brought
in it.
Halleck, p. 682; The Jonge Arend, 5 C. Rob. 14; The Goede Hoffnung,
1 Dod. 257; The Bourse, 1 Edw. 369; The Speculation, 1 Edw. 344;
The Hoffnung, 2 C. Rob. 162.
Exception of a particular flag.
When the license authorises the transportation of goods by any
ship or ships except those under the flag of a particular nation, the
exception refers to the fact of the nationality of the ship, not merely
to the external signs. Although the vessel may be documented as
belonging to, and actually bear the flag of, another State, if it be
shown that she really belonged to the excepted nation, she will not
384
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
be protected by the license and the flag. The reason of this rule is,
that vessels of the excepted nation might otherwise engage in the
prohibited navigation, by substituting a foreign flag for their own.
But the unauthorised employment of such excepted vessels is not
permitted to affect the goods of shippers who were not privy to the
deception, or cognisant of the fact. Where there is no ground for
imputing to them a voluntary departure from the conditions of the
license in this respect, their property, if embraced by its terms, re-
tains its protection. The vessel itself is condemned.
Halleck, pp. 682, 683; The Bourse, 1 Edw. 370; The Jonge Clara, 1 Édw.
371; The Dankbaarheit, 1 Dod. 183.
Change of national character during voyage.
Again, if the vessel was, in fact, not of the excepted nation when
she sailed, but became so during the voyage, by some unexpected
change of circumstances, as the conquest or annexation of the coun-
try to which she belongs, by the excepted State, such change of politi-
cal relations will not deprive her of the protection of the license,
where the parties have acted fairly under it. Thus, where the license
was for a ship bearing any other flag than that of France, and the
owners had become French subjects during the voyage by the sudden
annexation to France of the port and territory in which they re-
sided, it was held by Sir William Scott, that the ship continued
under the protection of the license, notwithstanding this change of
national character.
Halleck, p. 683; The Jonge Clara, 1 Edw. 371.
Protection before and after voyage.
A license to a vessel to import a particular cargo is held to protect
a vessel, in ballast, on her way to the port of lading, for the express
purpose specified in the license. So, also, a license to export a cargo
to an enemy's port covers the ship, in ballast, on her return. In
· each of these cases the voyage to which the license is extended by
implication has a necessary connection with that to which it expressly
relates. But the protection extends no further than is necessarily
implied in the license; the taking of any part of a cargo on board
in the outward voyage in the case of importation, or in the return
voyage in the case of exportation, subjects both ship and goods to
confiscation.
Halleck, pp. 683, 684; The Cornelia, 1 Edw. 360 ; Le Cheminant v.
Pearson, 4 Taunt. 367; The Friendschaft, Dod 316.
Quality and quantity of goods.
The third point to be considered in the execution of a license is
the quality and quantity of goods it protects. A small excess in
quantity, or the partial substitution of those of a different quality,
LICENSES.
385
if free from the imputation of concealment or fraud, will not abso-
lutely vitiate the license, under the colour of which they were intro-
duced. The goods not protected by it are condemned, while those
which it is admitted to embrace are restored. If the excess in quan-
tity be very small, and not attributable to design, it is intimated by
Sir William Scott, that it would not be regarded as an essential devia-
tion; but any change in the quality of the goods can not be justified
or excused, and the articles not protected by the license are con-
demned. The fraudulent application of a license to cover or conceal
goods not intended by the grantor renders it wholly void, and
exposes to confiscation even the goods that are embraced in its terms.
Thus, where a vessel was licensed to proceed only with a cargo of
corn on the voyage described, and a quantity of firearms was stowed
under the cargo for concealment, both ship and cargo were con-
demned.
Halleck, p. 684; Wildman, Int. Law, vol. ii, pp. 256, 257; The Jonge
Clara, 1 Edw. R. 371; The Juffrow Catharina, 4 Rob. 141; The
Nicoline, 1 Edw. R. 363; The Vriendschap, 4 Rob. 96; The Goede
Hoop, Edw. R. 336; The Catharina Maria, Edw. R. 337; The Wol-
farth, 1 Edw. R. 365; The Seyerstadt, 1 Dod. R. 241; Kier v.
Andrade, 6 Taunt. R. 498.
Protection to enemy's goods.
It was at one time held, that express words were necessary to pro-
tect the property of an enemy; but it was finally decided by the
Court of Exchequer chamber, that a license containing the words,
“to whomsoever the property may appear to belong," included goods
shipped on account of enemy's subjects. But Duer expresses a doubt
whether this last decision was not to be referred to the peculiar cir-
cumstances of the war, and to be regarded as the fruits of the extreme
liberality of construction which prevailed in England at that par-
ticular time.
Halleck, pp. 684, 685; Duer on Insurance, vol. i, pp. 604, 605; The
Cousine Marianne, 1 Edw. R. 346; The Hoffnung, 2 Rob. 162; The
Beurse van Koningsberg, 2 Rob. 169; Flindt v. Scott, 5 Taunt. 674;
Mennett v. Bohnam, 15 East. R. 477; Usparicha v. Noble, 13 East.
R. 332; Foyle v. Bourdillon, 3 Taunt. R. 546; Feise v Bell, 4
Taunt. R. 478; Anthony v. Moline, 5 Taunt. R. 711; Schnakoneg v.
Andrews, 5 Taunt. R. 716; Robinson v. Tournay, 1 M. and Sel. R.
217; Hullman v. Whitmore, 3 M. and Sel. R. 337.
If cargo be injured.
The protection of a license is not limited, in all cases, to the cargo
originally shipped; for if the original cargo should be accidentally
injured or spoiled, it may be replaced by a second one, precisely
corresponding with that described in the license. A license, says
386
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Wildman, was granted to a neutral vessel to import a specified cargo
from Amsterdam; the ship having taken on board her cargo, sailed
from Amsterdam, but was obliged to put into Medemblick, which
bears the same relative situation to Amsterdam that Gravesend does
to London. At Medemblick it was necessary to unload the cargo,
which was found to be so much damaged that it was not fit to be put
on board again. The old cargo was therefore sold, and a new one
of the same identical nature with the first, corresponding with it
both in substance and quality, was put on board. “It was held that,
under these circumstances, the parties were not deprived of the pro-
tection of the license. The case would have been widely different,
if goods of a different description has been taken instead of the original
cargo. Here the original purpose was pursued; no new speculation
was originated, nor was there any change, except such as was pro-
duced by time, and unavoidable accidents.
Halleck, pp. 685, 686; Wildman, Int. Law, vol. ii, p. 258; The Wolfarth,
1 Dod R. 305; Siffkin v. Glover, 4 Taunt. R. 717.
Compulsory change of cargo.
It is never admitted as a valid excuse for receiving on board goods
not permitted in the license, that compulsion had been used by the
hostile government, and that they were received only to avoid the
seizure of the vessel. If such an excuse were admitted, it would open
the door to fraud and collusion, as it would be difficult, if not impos-
sible to discover whether such a transaction, taking place in an
enemy's port, was voluntary or not.
Halleck, p. 686; Duer, On Insurance, vol. i, p. 608; The Catharina
Maria, Edw. R. 337; The Seyerstadt, 1 Dod. R., 241.
If cargo cannot be landed.
A license to export goods to an enemy's port, although limited in
terms to the outward voyage, is sufficient to protect both ship and
cargo on the return, if the delivery of the goods at the port of desti-
nation was prevented by some inevitable accident, as a blockade, or
a reasonable apprehension of seizure. But to entitle himself to the
benefit of this liberal construction, the claimant must prove that the
goods brought back are the identical goods exported under the license.
Halleck, p. 686; The Jonge Frederick, 1 Edw. R. 357.
License to import no protection for re-exportation.
Where a license is given expressly for importation, it is held that
it can be used for that purpose only, and not for re-exportation.
Although the application should be made for a license to import, for
the particular and special purpose of re-exportation, the permission
to import would extend no further that was expressed in the instru-
ment itself. So, also, a license to import for the purpose of exporta-
LICENSES.
387
tion, with condition of putting cargo in government warehouses, as
security for re-exportation, must be strictly complied with. Such a
license does not cover importations for sale.
Halleck, pp. 686-687; The Vrouw Deborah, 1 Dod. 160.
Course of voyage.
The fourth point to be considered in determining the due execution
of the license is, the course and route of the voyage. The requisitions
of a license as to the port of shipment or delivery, of departure or
destination, must be strictly followed. The same may be said, in
general, with respect to the course of the voyage. If the license di-
rects that the ship shall stop at a particular port for convoy, the
neglect or omission to comply with the direction invalidates the
license. The same result would follow the touching for orders at an
interdicted port; but a deviation, for the same purpose, to a neutral
or other port not forbidden, although not authorised, seems not to
impair the legal effect of the license. Any deviation from the pre-
scribed course of the voyage, if produced by stress of weather, or
other unavoidable accident, does not invalidate the license; if the
necessity is proved, it is deemed a valid excuse.
Halleck, p. 687; The Europa, 1 Edw. R. 341; The Minerva, 1 Edw.
R. 375; The Emina, 1 Edw. R. 366; The Twee Gebroeders, 1 Edw. R.
The Byfield, 1 Edw. R. 188.
97;
1
Change of destination.
An enemy's ship and cargo, belonging to the same owner, and li-
censed to go to Dublin, were taken going to Leith, a place not named
in the license, and to be reached by a course totally different from
that indicated; both ship and cargo were condemned. The party not
being within the terms of the license, the character of enemy revives,
and the property, thus become hostile, is subject to the ordinary
rule of confiscation.
Halleck, p. 687; The Manly, 1 Dod. 257; The Edel Catharina, 1 Dod.
p;
55; Wainhouse v. Cowie, 4 Taunt, 178.
Intended ulterior destination.
An intended ulterior destination does not vitiate the protection of
a license, if the parties keep within the terms expressed and intended
by the instrument. Thus, a vessel had a license to import a cargo
into Leith from a port of the enemy, with an ulterior destination to
Bergen. It was held that such ulterior destination did not vitiate the
license for the voyage to Leith; but had the vessel been captured
after completing the licensed part of the voyage, and on the way
from Leith to Bergen, the license would have afforded her no pro-
tection.
Halleck, pp. 687, 688; The Henrietta, 1 Edw. 363.
388
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Capture before and after deviation.
The effect of a deviation from the direct voyage described in the
license, by touching at an intermediate port, depends in some degree
upon the time of capture. If such vessel be seized on her way to
such intermediate port, the presumption of law is that she was going
thither for the purpose of violating the license. But if taken after
leaving the intermediate port, with the identical cargo which she
carried in, and while actually proceeding for her lawful destination,
the presumption of mala fides would be removed. Touching at an
interdicted port vitiates the license, unless expressly permitted in the
license itself.
Halleck, p. 688; The Europa, 1 Edw. 342; The Frau Magdalena, 1
Edw. 367; The Hoppet, 1 Edw, 369.
Condition to call for convoy.
The condition introduced in the license, that the vessel shall stop
at a particular port for convoy, is regarded as fundamental, and the
breach of it as fatal. The reason for introducing the condition is
that the vessel may be subject to inspection in that part of her navi-
gation. In a case where the admiral, under whose direction the con-
voy was to be furnished, ordered a deviation for the purpose of
taking convoy at another place, the court felt itself bound to uphold
the acts of the admiral. Such a deviation was placed on the same
ground as that caused by stress of weather.
Halleck, p. 688; The Minerva, Edw. 375; The Anna Maria, 1 Dod. 209.
A license has no retrospective action.
A license does not act retrospectively, and cannot take away any
interest which is vested by law in the captors. Thus, a vessel was cap-
tured on January 24, with an expired license on board. Another
license was obtained, and its date carried back to January 20. It was
held by the court that the vessel at the time of capture was not pro-
tected either by the license which had expired, or by that subsequently
obtained.
Halleck, p. 689; Duer, On Insurance, vol. i, p. 618; Wildman, Int.
Law, vol. ii, p. 265; The Vrouw Deborah, 1 Dod. R. 160; The St.
Ivan, Edw. R. 376; The Edel Catharina, 1 Dod. R. 45; Henry v.
Stanniforth, 4 Camp. R. 270.
If license not on board, or not endorsed.
Moreover a license, not on board at the time of capture, but after-
wards endorsed for it by the shipper, is no protection. If the license
is general in its terms, the mere fact of its being found on board is
not sufficient, unless it has been appropriated to such ship by an en-
dorsement to that effect, or by some positive evidence that this appli-
cation was intended by the parties entitled to its use.
These rules
LICENSES.
389
are obviously necessary to prevent a misapplication of the license
by persons not having a right to avail themselves of its protection.
Halleck, pp. 689–690; The Speculation, Edw. R. 344; The Fortuna, Edw.
R. 236; The Carl, Edw. R. 339.
Breach of blockade.
A license to trade with a port of the enemy does not serve as a
protection for a breach of blockade, in case the port is blockaded;
nor does it afford any protection for carrying goods contraband of
war, enemy's despatches, or military persons, or for a resistance of
the right of visitation and search; in fine, it can cover no act not ex-
pressly mentioned in the license or implied as a means necessary for
its execution.
Halleck, p. 690; The Nicoline, 1 Edw. 364; The Actaeon, 2 Dod. 54;
The Byfield, 1 Edw. 190.
Alteration of date.
A license is vitiated and becomes a mere nullity by an alteration
of its date. In this respect licenses are governed by the same rules as
other grants issued by the supreme power of the State; they are
utterly vitiated by any fraudulent alteration, and any change is
prima facie fraudulent. It may, however, be explained.
Halleck, p. 690; The Louise Charlotte, 1 Dod. 308; The Cosmopolite,
4 C. Rob. 13; The Auroda, 4 C. Rob. 218; The Diana, 2 Act. 54.
License from the enemy.
We have already seen that no commercial intercourse can be law-
fully carried on between the subjects of States at war with each
other, except by the special permission of their respective govern-
ments. As such intercourse can only be legalized in the subjects of
one belligerent State by a license from their own government, it is
evident that the use of such a license from the enemy must be illegal,
unless authorized by their own government; for it is the sovereign
power of the State alone which is competent to act on the considera-
tions of policy by which such an exception from the ordinary conse-
quences of war must be controlled. And this principle is applicable
not only to a license protecting a direct commercial intercourse with
the enemy, but to a voyage to a country in alliance with the enemy,
or even to a neutral port; for the very act of purchasing or procur-
ing the license from the enemy is an intercourse with him prohibited
by the laws of war; and even supposing it to be gratuitously issued,
it must be for the special purpose of furthering the enemy's interests,
by securing supplies necessary to prosecute the war, to which the
subjects of the belligerent State have no right to lend their aid, by
sailing under these documents of protection.
Wheaton, p. 426.
390
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Thus a license granted by the belligerent State to its own sub-
jects, or to the subjects of its enemy, to carry on a trade interdicted
by war, operates as a dispensation with the laws of war, so far as its
terms can be fairly construed to extend. The adverse belligerent
party may justly consider such documents of protection as per se a
ground of capture and confiscation; but the maritime tribunals of
the State, under whose authority they are issued, are bound to con-
sider them as lawful relaxations of the ordinary state of war. A
license is an act proceeding from the sovereign authority of the
State, which alone is competent to decide on all the considerations of
political and commercial expediency, by which such an exception
from the ordinary consequences of war must be controlled. Licenses,
being high acts of sovereignty, are necessarily stricti juris, and must
not be carried further than the intention of the authority which
grants them may be supposed to extend. Not that they are to be
construed with pedantic accuracy, or that every small deviation
should be held to vitiate their fair effect. An excess in the quan-
tity of goods permitted might not be considered as noxious to any
extent, but a variation in their quality or substance might be more
significant, because a liberty assumed of importing one species of
goods, under a license to import another, might lead to very danger-
ous consequences. The limitations of time, persons, and places,
specified in the license, are also material. The great principle in
these cases is, that subjects are not to trade with the enemy, nor the
enemy's subjects with the belligerent State, without the special per-
mission of the government; and a material object of the control
which the government exercises over such a trade is, that it may
judge of the fitness of the persons, and under what restrictions of
time and place such an exemption from the ordinary laws of war
may be extended. Such are the general principles laid down by Sir
W. Scott for the interpretation of these documents; but Grotius lays
down the general rule, that safe-conducts, of which these licenses
are a species, are to be liberally construed ; laxa quàm stricta in-
terpretatio admittenda est. And during the last war, licenses were
eventually interpreted with great liberality in the British Courts
of Prize.
It was made a question in some cases in those courts, how far these
documents could protect against British capture, on account of the
nature and extent of the authority of the persons by whom they
were issued. The leading case on this subject is that of the Hope,
an American ship, laden with corn and flour, captured whilst pro-
ceeding from the United States to the ports of the Peninsula occu-
pied by the British troops, and claimed as protected by an instru-
ment granted by the British consul at Boston, accompanied by a
LICENSES.
391
certified copy of a letter from the admiral on the Halifax station.
In pronouncing judgment in this case, Sir W. Scott observed, that
the instrument of protection, in order to be effectual, must come
from those who have a competent authority to grant such a protec-
tion, but that the papers in question came from persons who were
vested with no such authority. To exempt the property of enemies
from the effect of hostilities is a very high act of sovereign authority;
if at any time delegated to persons in a subordinate station, it must
be exercised either by those who have a special commission granted
to them for the particular business, and who, in legal language, are
called mandatories, or by persons in whom such a power is vested in
virtue of any situation to which it may be considered incidental. It
was quite clear that no consul in any country, particularly in an
enemy's country, is vested with any such power in virtue of his sta-
tion. Ei rei non praeponitur, and, therefore, his acts in relation to
it are not binding. Neither does the admiral, on any station, pos-
sess such authority. He has, indeed, power relative to the ships
under his immediate command, and can restrain them from com-
mitting acts of hostility; but he cannot go beyond that; he cannot
grant a safeguard of this kind beyond the limits of his own station.
The protections, therefore, which had been set up did not result from
any power incidental to the situation of the persons by whom they
had been granted; and it was not pretended that any such power
was specially intrusted to them for the particular occasion. If the
instruments which had been relied upon by the claimants were to be
considered as the naked acts of those persons, then they were, in
every point of view, totally invalid. But the question was, whether
the British government had taken any steps to ratify these proceed-
ings, and thus to convert them into valid acts of state; for persons
not having full power may make what in law are termed sponsiones,
or, in diplomatic language, treaties sub spe rati, to which a subse-
quent ratification may give validity: ratihabito mandato aequip-
aratur. The learned judge proceeded to show, that the British gov-
ernment had confirmed the acts of its officers, by the Order in Council
of the 26th October, 1813, and accordingly decreed restitution of
the property. In the case of The Reward, before the Lords of
Appeal, the principle of this judgment was substantially confirmed;
but in that of The Charles, and other similar cases, where certificates
or passports of the same kind, signed by Admiral Sawyer, and also
by the Spanish minister in the United States, had been used for
voyages from thence to the Spanish West Indies, the Lords of Appeal
held that these documents, not being included within the terms of
the confirmatory Order in Council, did not afford protection. In the
cases of passports granted by the British minister in the United
!
392
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
States, permitting American vessels to sail with provisions from
thence to the island of St. Bartholomew, but not confirmed by an
Order in Council, the Lords condemned in all the cases not expressly
included within the terms of the Order in Council, by which certain
descriptions of licenses granted by the minister had been confirmed.
Wheaton, pp. 502-504; The Hope, 1 Dodson, 226; Stewart's Vice-Adm.
Rep. 367.
A license to trade with the enemy must be issued by competent
authority, without material misrepresentation, whether intentional
or not, on the part of the receiver, and used in good faith, strictly
according to its terms. An error, though without fraud, may vitiate
it. It is always ultimately from sovereign authority. The only
question is, what authority the sovereign expressly or impliedly
grants to a subordinate commander. It is understood that a com-
mander may grant special licenses within his department, but not
licenses general in respect of time or place.
The person named in the license may be either a principal or an
agent; but, if he is described as principal, he cannot protect property
for which he is agent. If no person is named or implied, it is pre-
sumed to be negotiable, and the subject of sale.
There must be a substantial compliance with any statement of na-
tionality of the vessel to be used. An enemy's vessel cannot be used,
unless expressly permitted; nor a vessel of the grantor's nation, if
neutral vessels only are named. Still, as substantial compliance is
sufficient, where the nationality of the neutral vessel, or the number
of the vessels of one flag, is not material, a departure in that par-
ticular, in good faith and from necessity or great convenience, is
not fatal.
A liberal construction has been put upon this subject [as to cargo]
in cases of good faith and necessity. But the pressure of hostile
powers is never regarded as a justifying necessity, as that would
open a door to fraud. A change of the quantity or quality of the
goods, or substitution in case of loss, if not making a material varia-
tion, is permitted. So the going or returning in ballast may be im-
plied, or the returning full, where unlading becomes impossible. If
unprotected goods are on board, by accident or mistaken interpreta-
tion, they are condemned; but the license is not rendered void, unless
it has been perverted intentionally for the purpose of carrying such
goods.
On this [the course of the voyage] the greatest strictness is re-
quired. The rules laid down do not vary much from those applied
to policies of insurance for described voyages. An intentional de-
viation forfeits the license, but not a mere intent, the execution of
which is not entered upon, unless it shall, in fact, have produced
LICENSES.
393
some effect on the voyage. The requirement to visit certain ports
for convoy or other purposes, whether the purpose be expressed or
not, must be complied with. These visits are guaranties of good faith,
and also enable the grantor to inspect the vessel.
Time is usually of the essence of the license. In case of a license
to export from a port of the grantor, the time is a condition that must
be complied with, or the license does not take effect. In case of a
license to import from an enemy's country, allowance will be made
for circumstances beyond the control of the licensee.
A license gives no right to visit a permitted port, if under blockade,
or to carry contraband goods, papers, or persons or to resist search.
Wheaton, pp. 504, 505, Dana's note 198.
It is not unusual, however, for a belligerent to grant to its own
subjects a license to carry on a certain specified trade with the enemy,
which, if the other party allows it, becomes a safe and legitimate
traffic. It is common, also, for the subjects of one belligerent to ob-
tain such a license from the other; but, of course, this of itself will
not protect them against the laws of their own country.
Woolsey, p. 194.
Next to these may be classed permissions given to individuals
which suspend the operations of war, as far as their persons are
concerned, for the purpose of enabling them to perform a work of
peace. These modes of plighting faith are not necessary for the
conduct of the war.
One of these is licenses to trade with the enemy. A license to trade
with the enemy, being an exception to the ordinary rules of war, is
to be strictly interpreted, and yet, where there has been evident good
faith in following it, slight deviations will not be noticed. If the
person, the port or town, the kind and quality of the goods, the limits
of time, are prescribed in the license, departures from its terms, with
the exception of unavoidable delay, will make it void. Thus it has
been decided that a license to neutral vessels becomes void when
hostile vessels or those of the country giving the license are substi-
tuted for them; that a license to import will not cover re-exportation;
that a license prescribing a certain course of navigation is avoided by
voluntary departure from such a course; that a license to sail in bal-
last is forfeited by carrying part of a cargo, or to import certain arti-
cles will not protect other articles, not named, although destined for
a neutral port, or again to proceed to a certain port is vitiated by
calling at an interdicted port for orders. A general license to sail
to any port will not include a blockaded one, which is shut by
higher laws of war. A license although it has expired will protect
in case of unavoidable hindrances. No consul and no admiral, ac-
110678—19-26
394
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
cording to English doctrine, can give a license, which is a high act
of sovereignty, without authority of the government. A license
protects against all cruisers of the enemy, but not against any action
of the country to which the licensed person or vessel pertains.
Woolsey, p. 256; Wildman, II, 245–269.
A licence to trade is sometimes granted by a belligerent state to
the subjects of its enemy, either in the form of a general permission
to all enemy subjects to trade with a particular place or in particu-
lar articles, or of a special permission addressed to individuals to do
an act of commerce or to carry on a commerce which is specified in
the licence. In both cases all the disabilities under which an enemy
labours are removed by the permission to the extent of its scope, so
that he can contract with the subjects of the state and enforce his
contracts in its courts.
The propriety of granting a licence is a question of policy, and
the grant of a privilege exempting from the ordinary effects of war
is a high exercise of sovereign power; as a rule consequently licences
can only be given by the supreme authority of the state; a general or
admiral-in-chief may however concede them to the extent of the
needs of the force or district under his command. Thus during the
war between the United States and Mexico, supplies being scarce
in California and American vessels being wanting on that coast,
licences for the import of supplies were issued by the commander of
the Pacific squadron and by the military governor of the occupied
province. If an officer in command grants licences in excess of his
powers, his protection is good as against members of the force under
his immediate command, but is ineffectual as against other forces of
the state.
It is an implied condition of the validity of all licences that an ap-
plication for them, if made, shall not have been accompanied by
misrepresentation or suppression of material facts. A licence,
says Lord Stowell, “is a thing stricti juris, to be obtained by a
fair and candid representation and to be fairly pursued. It is not
even necessary, in order to invalidate it, that the misrepresentation
or suppression shall have been made with intention to deceive; the
grant of a licence being a question of policy, it cannot be certain that
it would be made under any other circumstances than those dis-
closed in the application. Thus a licence was held void, although
there was no proof of fraudulent intent, in the case of a person who
had a house of business in Manchester, and who received leave under
the description of a Manchester merchant to import goods into Eng-
land, upon its being discovered that he had also a house of business
in Holland and that he was the exporter from there as well as the
importer into England. And in another case, a licence given to a
LICENSES.
395
person described as 'Hampe, of London, merchant,' was invalidated
on the ground that he was not at the time settled in London, but
was only about to go there, and was in fact resident in Heligoland.
The objects of a licence and the circumstances in view of which it
is given are such that it is not necessary to the interests of the
grantor that it shall be construed with literal accuracy, and on the
other hand it is necessary that it shall be construed with reference
to his intentions entertained, and capable of being supposed by a
grantee acting in good faith to be entertained, at the time of gift.
The principle therefore, which is applicable to the construction of
a licence, is that a reasonable effect must be given to it in view, first
of the general conditions under which licences are granted, and
secondly, of the particular circumstances of the case. Applying this
principle to the several heads of the persons who may use a licence,
the merchandise and means of conveyance which it will cover, the
permissible amount of deviation in a voyage, and the time within
which it is good, the following may be said.
1. If a licence is granted to a particular person by name, he or his
agent may use it for the purposes of his trade; if it be granted to a
particular person and others, he may act either as principal or agent,
and he need not necessarily have any interest in the property in
which trade is carried on under it; if, finally, it be granted to a
particular person by name, he is incompetent to act as the agent of
other persons, and so in effect to make his personal privilege a sub-
ject of transfer and sale.
2. When goods in favor of which a licence is given are limited in
quantity or specified in character, it is not necessary that there shall
be more than a fair general correspondence between the cargo con-
veyed and the amount and kind permitted; a small excess, that is to
say, or small quantities of goods varying somewhat from the de-
scription in the licence, or even wholly foreign to it if they are in-
offensive in their nature, will not entail condemnation. In the same
way immaterial variations in the mode of conveyance are regarded
as innocent. Thus when leave was given to import a cargo of
brandy from the Charente, and owing to all vessels lying there
having been put under an embargo importation from there was im-
possible, brandy of due quantity, but imported from Bordeaux, and
in two small vessels instead of in a single large one, was released.
3. As a rule, deviation from a prescribed course entails confisca-
tion. Deviation caused by stress of weather is of course excepted;
and it appears that to touch for orders at a port which, though ly-
ing out of the prescribed course, is not absolutely interdicted, is
permissible.
4. The effect of a limitation in time is different when it has refer-
ence to the beginning or to the end of a voyage. If a date is fixed
396. SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
as that before which a voyage must begin, the licence is voided if
the vessel possessed of the licence has not set sail before the proper
time; when, on the other hand, a date is fixed before which the ves-
sel must arrive, stress of weather, delays interposed by the enemy,
and other like causes are taken into consideration, and condemnation
takes place on account only of delays which cannot be so accounted
for.
Hall, pp. 575–578; The Vriendschap, 4 C. Rob. 98; Klingender v. Bond,
14 East. 484; The Jonge Klassina, 5 C. Rob. 297.
As it has already been said, the doctrine of non-intercourse is in
theory now as rigorous as it ever was; but in practice certain relaxa-
tions have been gradually introduced. There are two main divisions
of cases of trade and contracts which are permitted in time of war;
firstly, contracts in support of trade with the enemy authorized by
special license or by proclamation, and secondly, contracts of neces-
sity, e. g., ransom contracts, when not prohibited by the State.
Licenses are of two kinds, general and special. A general license
applies to all subjects and to all kinds of intercourse. The granting
of such a license, by the Sovereign and only by the Sovereign, is
equivalent to the suspension of the exercise of the rights of war. A
special license authorizes trade in certain goods, and is not trans-
ferable. It is generally granted by the Sovereign, but sometimes is
granted for a fixed time by the military authority. It is always
strictly construed. During the Crimean War Great Britain and
France permitted their subjects to trade with non-blockaded Russian
ports, if in neutral vessels, but not, of course, in contraband goods.
Similarly, Russia permitted the importation in neutral vessels of
goods belonging to British and French subjects. In the Chinese War
of 1860, both Great Britain and France authorised their subjects to
trade with the Chinese; but in this case the war was waged against
China for the very purpose of compelling her to open her ports to
the commerce of the two nations. In former times licenses were
given in very large numbers. M. Kleen referring to this practice,
points out that the motives of States were scarcely defensible, be-
ing based mostly on self-interest, and as a cover for all kinds of
irregularities.
Phillipson, pp. 65, 66.
In modern wars the general interdiction of commerce has usually
been relaxed by the grant of“ licences to trade” or special exemptions
given in particular cases. It may suit a belligerent's interests to
allow his subjects and the enemy's to carry on general trade under
certain specified conditions, or trade in a certain commodity, and in
such cases the high act of sovereignty by which he grants the privi-
LICENSES.
397
lege removes the taint of illegality from the subsequent commercial
transactions. During the Crimean War, Great Britain permitted
English subjects to trade with Russian ports which were not block-
aded, provided the merchandise was not contraband of war and was
carried in neutral bottoms; and Russia on her side allowed the im-
portation of English goods. There was mutual advantage in the
freedom of trade which was thus sanctioned by the two Powers. In
the American Secession War a special exemption was made in the
case of trade in cotton. The people in the Cotton States were natur-
ally eager to dispose of their produce, which made the wealth of the
South and gave them the money by which they were able to carry
on the war. With the outbreak of hostilities and the blockading of
the tide-water towns of the South, the price of the commodity rose
in the Northern States and in Europe, and the business instincts of
the Washington administrators prompted them to sanction the půr-
chase (cheaply, because of the local glut) of the cotton which the
southern farmers had stored away when the markets were closed.
The policy of allowing freedom of trade in cotton was certainly a
good business policy, but it came very near“ giving aid and comfort”
to the rebellion, as Sherman pointed out in a vigorous protest. After
he had received the order from Washington to purchase cotton for
gold, he wrote to Army Headquarters (September, 1862)—“Trade in
cotton is now free, but in all else I endeavour so to control it that
the enemy shall receive no contraband goods, or any aid or comfort."
Spaight, p. 27; Sherman, Memoirs, pp. 266, 267, 275.
+
Several writers [See, for instance, Hall, sec. 196; Halleck, II. pp.
343-363; Lawrence, Sec. 214; Manning, p. 168; Taylor, sec. 512;
Wheaton, secs. 409 410; Fiore, III. No. 1500. Pradier-Fodéré, VII.
No. 2938.] speak of non-hostile relations between belligerents created
by licences to trade granted by a belligerent to enemy subjects either
within certain limits or generally. It has been explained above, in
sec. 101, that it is for Municipal Law to determine whether or not
through the outbreak of war all trade and the like is prohibited be-
tween the subjects of belligerents. If the Municipal Law of one or
both belligerents does contain such a prohibition, it is of course
within the discretion of one or both of them to grant exceptional
licences to trade to their own or the other belligerent's subjects, and
such licences naturally include certain privileges. Thus, for instance,
if a belligerent allows enemy subjects to trade with his own subjects,
enemy merchantmen engaged in such trade are exempt from capture
and appropriation by the grantor. Yet it is not International Law
which creates this exemption, but the very licence to trade granted
by the belligerent and revocable at any moment; and no non-hostile
398
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
international relations between the belligerents themselves originate
from such licences. The matter would be different if, either in time
of peace for the time of war, or, during war, the belligerents agreed
to allow certain trade between their subjects; but non-hostile relations
originating from such an agreement would not be relations arising
from a licence to trade, but from a cartel.
Oppenheim; vol. 2, 275.
Enemy ships protected by licenses are free from capture as long
as they navigate and trade in accordance with the terms laid down
therein. It is, as we have already seen, the generally received doc-
trine that war works a suspension of commercial relations between
subjects of the belligerent powers. Moreover, a state engaged in hos-
tilities has a right to prevent certain kinds of traffic between neutrals
and the enemy. But it may, if it chooses, issue licenses to its own sub-
jects, or neutral subjects, or enemy subjects, allowing them to carry
on a trade ordinarily forbidden. Belligerents sometimes exercise this
right as a matter of state policy; and when they do so in favor of
an enemy the effect is to turn him into a friend as far as all matters cov-
ered by the license are concerned. His ship cannot be captured; but it
must keep to a specified course in its voyage, and trade at the places
and in the goods set forth by the terms of the instrument. If it fails
to observe the conditions laid down for it, its immunity is forfeited.
The issue of general licenses is a high act of sovereignty, which must
emanate from the central government of the state. But a naval or
military commander may issue licenses good within the area he
controls.
Lawrence, pp. 455, 456.
For such relaxations [of the doctrine of non-intercourse] the British
crown is not so helpless as it is for prohibitions, since it can grant
licenses for oversea trade in time of war, which operate as instruc-
tions to its cruisers not to interfere with the trade so licensed. Such
instructions directly bind the prize jurisdiction, and the British
courts of general jurisdiction recognize contracts made in the course
of the licensed trade as lawful. As historical examples of licenses
it may be mentioned that during the Crimean war both Great Britain
and France, the former by an order in council of 15 April 1854, per-
mitted their subjects to trade with non-blockaded Russian ports, if
in neutral vessels and not in articles of contraband, and Russia, by
a declaration of 9 April 1854, allowed goods belonging to British
and French subjects to be imported in neutral vessels; also that dur-
ing their war with China in 1860 both Great Britain and France ex-
pressly permitted their subjects to continue their trade with that em-
LICENSES.
399
pire. The opinion now under consideration is maintained in practice
in France, but we must proceed to notice more particularly the deci-
sions of the courts in England and the United States.
Westlake, vol. 2, p. 50; Flindt v. Scott, 5 Taunton, 674.
A state may forego its rights by licensing trade with the enemy.
The effect when an enemy is interested in such a license is to convert
him into a friend to the extent of its conditions, so that he can insure
his property and enforce the contract of insurance by suit in the
name of an agent, and when his property is at sea it will not be cap-
turable, and will be subject to his right of stoppage in transitu. A
commander, as such, may regulate trade within the district of which
he is in military occupation, but only the supreme power can grant
such a license for oversea trade as to exempt it from capture.
Westlake, vol. 2, p. 161.
A license in its widest sense is a permit granted by a belligerent
State either to its own subjects, or to enemy subjects, or to neutrals,
authorizing the doing of something otherwise interdicted by war
The type of license most familiar to the Courts is a license to trade;
although such licenses are now less frequent than formerly.
A license to trade may be either general or special. A
general license is one issued to all subjects or even to all persons,
authorizing a trade with a particular place or in particular articles;
whilst a special license is one issued to individuals for a particular
voyage, or for the importation or exportation of particular goods.
The object of licenses is to relieve the commerce of the State, either
generally or in regard to particular commodities, from the restraints
otherwise imposed by the war. A general license can only be issued
by the supreme authority; but a special license may be issued either by
the supreme authority, or by a naval or military officer acting within
the limits of his particular command. A license, if duly issued, and if
its terms are complied with, serves to legalize all transactions neces-
sary to the due prosecution of the trade which is licensed, and also to
relieve the person or persons in whose favour it is granted from the
disabilities that would otherwise attach under the laws of the issuing
State. A license issued by one belligerent does not, of course, bind
the other; and may even confer on the holder in relation to the
latter an enemy character that would not otherwise attach to him.
The grant of licenses by one of two co-belligerents is subject to
the consent of the other, or at any rate, to the condition that the
trade licensed shall not interfere with the common operations. Li-
censes to trade were extensively issued by Great Britain during the
Napoleonic wars, and a considerable body of case law grew up in
400
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
respect to them; but such licenses are no longer usual except as in-
cident to particular military or naval operations, and the law in re-
lation to them is no longer so important as it once was.
Cobbett, pt. 2, pp. 81, 82.
Under license.
Passports, safe conducts, and licenses to trade have sometimes been
granted by belligerents to individual non-combatants, and within
the scope of the permission granted they serve as a protection against
the party issuing them;? but the other belligerent may regard the
holding of such licenses as a good ground for condemnation.3
G. G. Wilson in 40. Cyc. pp. 325, 326.
1 Usparicha v. Noble, 13 East 332, 12 Rev. Rep. 360, 104 Eng. Reprint 398.
License to trade in case of military occupation.-Butler v. Maples, 9 Wall. (U. S.) 766.
19 L. ed. 822; Harmony v. Mitchell, 11 Fed. Cas. No. 6,082, 1 Blatchf. 549, 8 N. Y. Leg.
Obs. 329 [affirmed in 13 How. 115, 14 L. ed. 75] ; U. S. v. The Henry C. Homeyer, 26
Fed. Cas. No. 15,353, 2 Bond 217. A license may be good consideration. Coolidge v.
Inglee, 13 Mass. 26. A license cannot validate a previous illegal transaction. Miller
U. U. S., 8 Ct. C1. 407. Nor does it authorize the purchase of confiscable property.
U. S. v. McKee, 26 Fed. Cas. No. 15,689. An agent licensed to trade with the enemy
cannot give this right to others. Snell v. Dwight, 120 Mass. 9. The burden of proving
license is on licensee. Lacy v. Sugarman, 12 Heisk, (Tenn.) 354. There is a presump-
tion of validity if the license is issued by the proper officer. U. S. v. Weed, 5 Wall.
(U. S.) 62, 18 L. ed. 531. Neither a consul nor the commander of an American vessel
of war has authority, by virtue of his official station, to grant any license or permit
which could have the legal effect of exempting the vessel of an enemy from capture and
confiscation. Rogers v. Amado, 20 Fed. Cas. No. 12,005, Newb. Adm. 400.
? See cases cited infra, this note.
Persons entitled to use.—6 Op. Atty.-Gen. 630; The Jonge Klassina, 5 C. Rob. 297;
Fenton v. Pearson, 15 East 419, 104 Eng. Reprint 903; Klingender v. Bond, 14 East
484, 13 Rev. Rep. 292, 104 Eng. Reprint 687 ; Atty.-Gen. v. Wilson, 3 Price 431; Robinson
v. Morris, 5 Taunt. 720, 1 E. C. L. 369; Warin v. Scott, 4 Taunt. 605, 13 Rev. Rep. 698.
Character of vessel.—The Hoffnung, 2 C. Rob. 162; Kensington v. Inglis, 8 East 273,
Rev. Rep. 438, 103 Eng. Reprint 346.
Character of goods and vessels.—Grigg v. Scott, 4 Campb. 339; The Bourse, Edw. Adm.
370; The Vrow Cornelia, Edw. Adm. 349; Keir v. Andrage, 2 Marsh, 196, 6 Taunt. 498,
16 Rev. Rep. 660, 1 E. C. L. 723.
Route to be pursued.—The Minerva, Edw. Adm. 375; The Europa, Edw. Adm. 342.
Time limit.---The Sarah Maria, Edw. Adm. 361 ; Williams 1. Marshall, 2 Marsh. 92,
1 E. C. L. 668, 1 Moore C. P. 168, 7 Taunt. 468, 2 E. C. L. 451, 18 Rev. Rep. 542 ;
Effruth v. Smith, 5 Taunt. 329, 1 E. C. L. 174. Protection not limited to cargo origi-
nally shipped. Siffkin v. Glover, 4 Taunt. 717.
Departure from terms of license excused under necessity.—The Magnus, 1 C. Rob. 31;
The Jonge Frederick, Edw. Adm. 357.
Course of voyage should follow license. —The Minerva, Edw. Adm. 375 ; The Europa,
Edw. Adm. 342.
3 The Langdon Cheves, 4 Wheat. (U. S.) 103, 4 L. ed. 525; The Caledonian, 4 Wheat.
(U. S.) 100, 4 L. ed. 523 ; Patton v. Nicholson, 3 Wheat. (U. S.) 204, L. ed. 371 ; The
Adriadne, 2 Wheat. (U. S.) 143, 4 L. ed. 205 ; The Hiram, 1 Wheat. (U. S.) 440, 4 L. ed.
131 ; The Hiram, 8 Cranch (U. S.) 444, 3 L. ed. 619; The Aurora, 8 Cranch (U. S.) 203,
3 L. ed. 536; The Julia, 8 Cranch (U. S.) 181, 3 L. ed. 528 [affirming 14 Fed. Cas. No.
7,575, 1 Gall. 594]; The Alliance, 1 Fed. Cas. No. 245, Blatchf. Prize Cas. 262; The
Anna, 1 Fed. Cas. No. 400, Blatchf. Prize Cas. 332 ; The Aurora, 2 Fed. Cas. No. 660;
The Gondar, 10 Fed. Cas. No. 5,526, Blatchf. Prize Cas. 266; The Saunders, 21 Fed.
Cas. No. 12,372, 2 Gall. 210; U. S. v. The Ariadne, 24 Fed. Cas. No. 14,465, Fish. Prize
Cas. 32; U. S. v. The Gordon, 25 Fed. Cas. No. 15,234a; U. S. v. The Matilda, 26 Fed.
Cas. No. 15,741, Brunn. Col. Cas. 258, 5 Hughes 44; The Nancy, 27 Ct. Ci. 99; The
Betsey, 36 Ct. Cl. 256. But see U. S. v. South Carolina, 27 Fed. Cas. No. 16,360, Fish
Prize Cas. 63, holding that a United States vessel is not subject to condemnation because
It carries a special pass or license from the enemy or the enemy's agent.
The knowledge of the agent is imputed to the principal in case of enemy's license or
trading with the enemy. The Hiram, 1 Wheat. (U. S.) 440, L. ed. 131.
LICENSES.
401
Licences by the Crown to Trade with the Enemy.--At common
law the Crown has the power to grant licences to trade with the
enemy (The“ Hoop," 1799, 1 Ch. Rob. 196), and it may revoke them
at any time (ibid. 199). Not only may such a licence be given to a
British subject who is within the kingdom, but a licence may also be
given to a British subject to reside and trade within enemy territory,
or to an alien enemy to reside and trade within the kingdom (Van-
dyck v. Whitmore, 1801, 1 East 475), or to an alien enemy domiciled
here to trade with his own native country (Usparicha v. Noble, 1811,
13 East, 332).
A licence may be either general or special. A general licence is
one permitting all subjects, or even all persons, to trade with a par-
ticular locality or in particular goods. A special licence is one
granted to individuals for a particular voyage, or for trading in
particular goods. These terms are, however, used by different jurists
in different senses (see Pitt Cobbett's Leading Cases on International
Law, 3rd edition, vol. ii. p. 81). But the important difference for
present purposes is between a licence given to British subjects or
alien enemies within the kingdom in general and a licence issued
only to individuals. A general licence can only be granted by the
Crown; but a special licence may be issued by a military or naval
officer acting within the limits of his particular command (ibid. 81;
see also The “ Hope," 1 Dod. 226).
An example of a general licence is the Order in Council, dated
15th April, 1854, which permitted British subjects to trade with
non-blockaded Russian ports, if in neutral ships, but not in contra-
band goods, during the Crimean War (see Clementson v. Blessig,
1855, 11 Exch. 135; The “Neptune,” 1855, Spinks' Prize Cas. 281).
.
*
Licences are construed liberally (Flindt v. Scott, 1814, 5 Taunt.
674). But there is some authority for saying that a special licence
is more strictly construed (The “ Cosmopolite,” 1801, 4 Ch. Rob. 8;
The “Vriendschap," 1801, ibid, 96). Non-disclosure by an agent,
when applying for a licence, of the fact that he was applying for an
enemy trader, did not vacate the licence in Flindt v. Scott, 1814, 5
Taunt. 674. In Lemcke v. Vaughan, 1824, 8 Moo. P. C. 646, an
innocent misdescription of a party in an application for a licence
did not affect the validity of the licence. But in Camelo v. Britten,
1824, 4 B. & Ald. 184, it was held that conditions attached to a
licence must be strictly complied with.
In Warin v. Scott 1812, 4 Taunt. 615, a Dutchman obtained limited
licences to reside in England and to carry on his trade, Great Britain
being then at war with his country. He shipped goods from an
English port after the expiry of his licence to reside, but before the
,
402
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
expiry of his licence to trade. An insurance of these goods was held
void.
Licences are not assignable. In Feize v. Thompson, 1808, 1 Taunt.
121, a licence had been issued to T. B. to import goods, being the
property of T. B., in neutral ships from an enemy's country. It was
held that it could not be assigned so as to authorise the importation
of goods, the property of the assignee. The question was raised, but
not decided, whether the licence would not have been sufficient, if
there had been a special property remaining in T. B. as general con-
signee of the cargo.
Licences are either express or implied. A licence to trade implies
an authority to insure (Kensington v. Inglis, 1807, 8 East, 273). So
where a licence is issued in general terms, e. g., to an alien enemy
domiciled in England, to ship goods in a neutral vessel to certain
ports in the enemy's country, such commerce is legalised for all pur-
poses of its due and effectual prosecution, either for the benefit of
the party himself or of his correspondents, though residing in the
enemy's-country; and such goods may, therefore, be insured by him
either on his own account or as agent for them (Usparicha v. Noble,
1811, 13 East 332). A licence to insure gives power not only to
insure the goods shipped, but also the vessel, although it be an
enemy's (Morgan v. Oswald, 1812, 3 Taunt. 554; Flindt v. Scott,
1814, 5 Taunt. 674). But a licence to a British subject to trade with
an enemy country does not imply a licence to reside in that country
(Ex parte Baglehole, 1812, 18 Ves. 526). A licence to an alien
enemy, however, to reside within the kingdom gives him authority
to sue on a bond here (Wells v. Williams, 1697, 1 Salk. 45).
Mere non-interference with an alien enemy who is within this
country has been held not to imply a licence to reside here.
In Bolton v. Dobree, 1808, 2 Camp. 163, a licence had been granted
to a Danish subject to undertake a voyage between London and Vera
Cruz. War broke out between this country and Denmark before the
termination of the voyage. After arriving at London the licensee
went about at large without being molested by the British Govern-
ment. But his agents were held not entitled to sue on a policy of
marine insurance effected by them on his behalf.
Even where an alien enemy is domiciled in the kingdom, and has
registered her place of abode in compliance with an Act, it has been
held that this does not amount to a licence to reside here (Alciator v.
Smith, 1812, 3 Camp. 241).
How far such cases would be followed now is matter of doubt.
The observations of Lord Lindley in Janson v. Driefontein Con-
solidated Mines, Limited, 1902, A. C. 505, would suggest that a
licence to reside would be implied from mere non-interference or
expulsion. This is the American view. In Clarke v. Morey, 1813,
LICENSES.
403
10 Johnson, 69, Chief Justice Kent held that alien enemies resident
in the United States at the time of war might sue or be sued as in
time of peace, and that it was not necessary for this purpose that
they should have an actual licence to reside therein, but that such a
licence would be implied from their being suffered to remain with-
out being expelled from the United States by the Government. This
was also held to apply to alien enemies who came into the United
States after the outbreak of war. The American authorities will be
found in Seymour v. Bailey, 1872, 66 III. 288.
Trotter, pp. 31–37.
Licenses to trade.
Licenses to trade are general and special. A general license re-
laxes the exercise of the rights of war, generally or partially, in rela-
tion to any community or individuals liable to be affected by their
operation. A special license is one given to individuals for a par-
ticular voyage or journey for the importation or exportation of par-
ticular goods.
U. S. Manual, p. 101.
Licenses to trade must, as a general rule, emanate from the su-
preme authority of the State. In certain exceptional cases the gov-
ernor of a province, the general of an army, or the admiral of a fleet,
may grant licenses to trade within the limits of their commands.
As to licenses to trade see the following cases:
The Sea Lion, 5 Wall., 630.
Coppell v. Hall, 7 Wall., 542.
Hamilton v. Dillin, 21 Wall., 73.
U. S. v. One hundred barrels of cement, 27 Fed. Cases, 292.
Dig. Int. Law, Moore, sec. 1141.
U. S. Manual, p. 101, note.
1
Licenses are sometimes granted by a belligerent State to its own
citizens, to those of the enemy, or to neutrals, to carry on a trade
which is interdicted by the laws of war. Such documents must be
respected by the officers and tribunals of the State under whose
authority they are issued, though they may be considered by the ad-
verse belligerent as a ground of capture and confiscation. They are
to be construed fairly but strictly.
Licenses are general and special. A general license relaxes the
exercise of the rights of war, generally or partially, in relation to
any community or individuals liable to be affected by their operation.
A special license is one given to individuals for a particular voyage
for the importation or exportation of particular goods.
404
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Licenses to trade must, as a general rule, emanate from the supreme
authority of the State. But there are exceptions to this rule, grow-
ing out of the particular circumstances of the war in particular
places. Thus, the governor of a province, the general of an army, or
the admiral of a fleet, may grant licenses to trade within the limits
of their own commands. But such licenses afford no protection
beyond the limits of the authority of those who issue them.
Moore's Digest, vol. VII, pp. 254, 255; Halleck, Int. Law (3d ed. by
Baker), II. 343 et seq.
See, as to licenses to trade, The Sea Lion, 5 Wall. 630; Coppell v. Hall,
7 Wall, 542; Hamilton v. Dillin, 21 Wall. 73; United States v. One
Hundred Barrels of Cement, 27 Fed. Cases, 292.
“I have to acknowledge the receipt of your letter of the 9th instant,
in which you state that you desire, as counsel for the Equitable Life
Assurance Society of the United States, to obtain from this Govern-
ment authority for your company to apply to the Spanish Govern-
ment for a license that will enable it to protect its real estate and
other assets in Spain.
"In this relation, the Department desires to refer to Article XIII.
of the treaty between the United States and Spain, concluded at San
Lorenzo el Real, October 22, 1795.
“The provisions of the article are as follows:
“For the better promoting of commerce on both sides, it is agreed,
that if a war shall break out between the said two nations one year
after the proclamation of the war shall be allowed to the merchants
in the cities and towns where they shall live, for collecting and trans-
porting their goods and merchandises; and if anything be taken
from them or any injury be done them within that term, by either
party, or the people or subjects of either, full satisfaction shall be
made for the same by the Government.'
"If the obligations of this article, which expressly refer to a state
of war, were recognized by the Spanish Government, it is probable
that they would be so construed as to accomplish, for the present
the object which you desire to attain, so far at least as the protection
of any personal property is concerned. The Department, however,
is advised that the Spanish Government has, as its public proclama-
tions imply, declared all the treaty stipulations between the two
countries, even though such stipulations expressly refer to a state of
war, to be annulled by the existing hostilities.
“In this position the Government of the United States does not
acquiesce; and while it considers the action of the Spanish Govern-
ment as releasing it from any obligation to observe the stipulations
in question, it is unwilling to lend any countenance to that Govern-
LICENSES.
405
ment's contention. With this reservation, however, it is not disposed,
in such a case as is now presented, to stand in the way of its citizens
obtaining, by special license of the Spanish Government; the protec-
tion which the treaty was designed to secure to them. The Depart-
ment therefore grants the request of the Equitable Life Assurance
Society of the United States for permission to obtain from the Span-
ish Government a license which will enable the company to protect
its assets in Spain. It is, however, to be understood that this per-
mission is granted upon the condition that the company will perform
its duties as a citizen of the United States and confine itself in its
action in Spain to the protection of its legitimate interests, and that
the permission is revocable at the will of this Government.'
Mr. Moore, Assist. Sec. of State, to Messrs. Alexander and Green, May 19,
1898, 228 MS. Dom. Let. 586.
Moore's Digest, vol. VII, pp. 255, 256.
A license is a kind of safe-conduct, granted by a belligerent state
to its own subjects, to those of its enemy, or to neutrals, to carry
on a trade which is interdicted by the laws of war, and it operates as
a dispensation from the penalties of those laws, with respect to the
state granting it, and so far as its terms can be fairly construed to
extend. The officers and tribunals of the state under whose au-
thority they are issued, are bound to respect such documents as law-
ful relaxations of the ordinary state of war, but the adverse belliger-
ent may justly consider them as per se a ground of capture and con-
fiscation. Licenses are necessarily stricti juris, and cannot be carried
beyond the evident intention of those by whom they are granted;
nevertheless, they are not construed with pedantic accuracy, nor will
their fair effect be vitiated by every slight deviation from their terms
and conditions. Much, however, will depend upon the nature of the
terms which are not complied with. Thus a variation in the quality
or character of the goods will often lead to more dangerous conse-
quences than an excess of quantity. Again, a license to trade, though
safe in the hands of one person, might become dangerous in those of
another; so, also, with respect to the limitations of time and place
specified in a license. Such restrictions are often of material im-
portance, and can not be deviated from with safety. ... In the
United States, as a general rule, licenses are issued under the
authority of an act of Congress, but in special cases and for pur-
poses immediately connected with the prosecution of a war, they
may be granted by the authority of the President, as Commander-
in-Chief of the military and naval forces of the United States."
Moore's Digest, vol. VII, pp. 395, 396; Halleck Int. Law (3d. ed., by
Baker), II. 343.
7
406
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The sailing on a voyage under the license and passport of pro-
tection of the enemy, in furtherance of his views and interests, sub-
jects the ship and cargo to confiscation as prize of war.
Moore's Digest, Vol. VII, p. 396, citing The Julia, 8 Cranch, 181; The
Aurora, 8 Cranch, 203. For a very full note by Wheaton on the
subject of licenses, see 3 Wheaton, 207.
The objections to the accepting of licenses from an enemy are thus
stated by Judge Story in the Julia (1 Gall. 233; 8 Cranch, 181, 193,
197). The principle, he states, is that “in war all intercourse be-
tween the subjects and citizens of the belligerent countries is illegal,
unless sanctioned by the authority of the Government, or in the ex-
ercise of the rights of humanity.” He insists that a license from an
enemy must be regarded as an agreement with such enemy that the
licensee will conduct himself in a neutral manner, and avoid any
hostile acts toward such enemy, and he holds, therefore, that acting
under such a license is a violation of the laws of war, and of a
citizen's duties to his own government. “Can an American citizen,"
he asks, “be permitted in this manner to carve out for himself a
neutrality on the ocean, when his country is at war? Can he justify
himself in refusing to aid his countrymen, who have fallen into the
hands of the enemy on the ocean, or decline their rescue? Can he
withdraw his personal services, when the necessities of the nation re-
quire them? Can an engagement be legal, which imposes upon him
the temptation or necessity of deeming his personal interest at vari-
ance with the legitimate objects of his Government?" He declares
that incompleteness of a voyage, under license from the enemy, is no
defense, for the vessel is liable to capture at the instant the voyage
under such license is commenced. Wherever the object of the voyage
is prohibited, its inception with the illegal intent completes the of-
fense to which the legal penalty attaches. This case of illegal trad-
ing, under a license from the enemy, is only a particular application
of a universal rule. Nor can it be a defense that the trade is not
subservient to the enemy's interest, as the condemnation of such
licensed vessel and cargo rests upon the broad ground of the il-
legality of such voyage.
Moore's Digest, vol. VII, pp. 396, 397, Halleck Int. Law (3d. ed. by
Baker), II. 138 et seq.
It is not necessary, in order to subject the property to condemna-
tion, that the person granting the license should be duly authorized
to grant it, provided the person receiving it takes it with the expec-
tation that it will protect his property from the enemy.
Moore's Digest, vol. VII, 397, citing The Aurora, 8 Cranch, 203.
LICENSES.
407
On August 5, 1812, Admiral Sawyer addressed to the British con-
sul at Boston a letter stating that, it being important to insure a con-
stant supply of flour and other dry provisions to Spain and Portugal
and to the West Indies, he (the Admiral) had been instructed to
direct the officers under his command not to molest American vessels
unarmed and so laden, bona fide bound to Portuguese and Spanish
ports, whose papers should be accompanied by a certified copy of a
letter under the consul's official seal. The consul then addressed a
similar communication to the commanders of British ships of war
and privateers, accompanied with a certified copy of the Admiral's
letter. American vessels thus licensed naturally threw themselves,
as soon as possible, into the hands of British cruisers for the pur-
pose of obtaining protection against American capture for sailing
under the enemy's license. Such vessels, when captured by American
cruisers, were condemned.
Moore's Digest, vol. VII, p. 397, citing The Hiram, 8 Cranch, 444; The
Hiram, 1 Wheaton, 440. See Upton's. Maritime Warfare and Prize
(2d ed.), 137.
The sailing under the enemy's license constitutes, of itself, an act
of illegality, which subjects the property to confiscation, without
regard to the object of the voyage or the port of destination.
Moore's Digest, vol. VII, p. 397, citing The Ariadne, 2 Wheat. 143.
See, also, Patton v. Nicholson, 3 Wheat. 204.
A vessel which has been rendered liable to capture as enemy's
property by sailing under the license or pass of the enemy, or for
trading with the enemy, may still be seized and condemned as prize
of war after her return to the United States, by virtue of the general
authority of the Government to seize all enemies' property coming
into our ports during war. And as a general rule, any person may
seize any property forfeited to the use of the Government, either by
the municipal law or by the law of prize, for the purpose of enforc-
ing the forfeiture; and it depends upon the Government itself
whether it will act upon the seizure. If it proceeds to enforce the
forfeiture by legal process, this is a sufficient confirmation of the
seizure.
Moore's Digest, vol. VII, pp. 397, 398, citing The Caledonian, 4 Wheat.
100.
The fact of a vessel having been sent into an enemy's port for
adjudication, and afterwards permitted to resume her voyage, was
held to raise a violent presumption that she had a license; and, the
claimant having produced no evidence to repel the presumption,
condemnation was pronounced.
Moore's Digest, vol. VII, p. 398 citing The Langdon Cheves, 4 Wheat.
103.
408
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
When a ship is captured in time of war, it is not to be presumed,
from the fact that she carries an enemy's license, that she intends pro-
ceeding to the port of the enemy. The license may be carried for
the purpose of deceiving the enemy.
Moore's Digest, vol. VII, p. 397 citing The Matilda, 5 Hughes, C. C. 544.
A contract made by a consul of a neutral power with a citizen of
a belligerent state, that he will “protect," with his neutral name,
from capture by the belligerent, merchandise which such citizen has
in the enemy's lines, is against public policy and void.
Moore's Digest, vol. VII, p. 398 citing Coppell v. Hall, 7 Wall. 542.
‘A United States consul has no authority by virtue of his offi-
cial station to grant any license or permit the exemption of a vessel
of an enemy from capture and confiscation.”
Moore's Digest, vol. VII, p. 398; The Benito Estenger, 176 U. S. 568; cit-
ing the Amodo, Newberry, 400; The Hope, 1 Dodson, 226, 229; The
Joseph, 8 Cranch, 451; Les Cinq Frères, 4 Lebeau's Nouveau Code
de Prises, 63; The Maria, 6 C. Rob. 201.
The Vriendschap, 4 C. Rob. 96.—The Court said: “But, supposing
the ship was really going in this course of trade, a question arises,
Whether it is such a course of trade as can be allowed? The shipper
obtains a license, which is a thing stricti juris, to be obtained by a
fair and candid representation, and to be fairly pursued. It is not
pretended that any mention was made of these articles, in the appli-
cation, or that it was at all presented to the view of the council,
that there was an intention of mixing up articles of this nature for
a farther destination to Oporto. It was stated to the council that the
ship was destined to Rouen. With the articles enumerated in the
license, would the council have allowed such an article as this to
have gone to Rouen under a certainty of being put in requisition
there, if wanted, notwithstanding the asserted purpose of the shipper
to carry it on to Oporto ? Then is this a fair execution of the license?
I cannot think that it is. I am disposed to refer it to the judgment
of another court, which will have the means of ascertaining what
would have been the opinion of the council on such a course of trade,
if it had been fairly disclosed to them."
The Jonge Klassina, 5 C. Rob. 297. Sir W. Scott said (pp. 299–
300): “ The license was granted to Mr. Ravie to import certain goods,
being his property. On the question relating to the property, con-
sidering the terms on which the goods are now stated to have been
shipped 'for Mr. Berry, but at the risk of Mr. Ravie during the
voyage,' I am disposed to hold that this provision of the license,
which refers to the description of property, has been sufficiently com-
LICENSES.
409
plied with. But it appears that Mr. Ravie was not only the im-
porter, but the exporter also; that he was personally present in Hol-
land, superintending the shipment according to the evidence, as it
is now explained, in the same manner as any other merchant of that
country would have done."
*
*
“What is meant by a nominal firm at that place, which I perceive
in several passages of these affidavits, I am at a loss to understand,
since Mr. Ravie appears to have been as subtantially employed in
the trade of Amsterdam, as any other mercantile firm of that place.
The character in which he stands before the court, in this particular
transaction, corresponds exactly with this view of his general con-
nection with that place. The charter party is brought, not to Mr.
V., his agent, but to himself, and he signs it as a merchant of Amster-
dam. It would, I conceive, be too much for me to pronounce, that
this can legally be done; or, in effect, that a man may go to the enemy's
country as often as he pleases, under the authority of a license of this
kind, and there act as a Dutch merchant, carrying on the export
trade of that country. I feel, I hope, as much as other persons, for
the difficulties under which the commerce of this country, and com-
mercial men, may be placed by the events of war; but it is not in
my power to bend the principles of law for their relief. If it is fit
that such relief should be afforded, it must be given elsewhere and
by higher powers. This court has no authority to exercise such a
discretion, but is under the painful necessity of pronouncing this
property subject to condemnation."
Kensington v. Inglis and another, 8 East 273.-Lord Ellenborough,
C. J., said: “As to the second question, whether the plaintiffs upon this
record, who are British subjects duly competent to sue in their own
persons, can in a Court of law enforce by suit a policy for the ben-
efit of another person who was an alien enemy when the policy was
effected, &c., was so at the trial, and still is so; the negative of this
proposition is strongly contended on behalf of the plaintiff in error,
on the authority of the cases of Bristow v. Towers, 6 Term Rep. 35,
and Brandon v. Nesbitt, ibid. 23. But it will be recollected that in
those cases the party interested, and on whose behalf the suit was
maintained, was an alien enemy, against whose recovery, through the
medium of his British trustee, there existed this objection, that the
property to be covered by the policy belonged to an alien enemy, and
that any protection afforded to such property, by means of a contract of
indemnity, directly and materially contravened the public interest,
which was concerned in the precariousness or destruction of such
property. In the present instance no such public policy of the coun-
try is contravened by sustaining and giving effect to such a trust;
110678419
-27
410
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
but, on the contrary, this country, in furtherance of the same policy
which allows the granting of licences to authorise the trade, ought
to give effect to the ordinary means of indemnity, by which that
trade (from the continuance of which the public must be supposed
to derive a benefit) might be best promoted and secured. And, al-
though the King's licence cannot, in point of law, have the effect
of removing the personal disability of the trader in respect of suit,
so as to enable him to sue in his own name, it purges the trust, in
respect to him, of all those injurious qualities in regard to the public
interest, which constituted the particular ground of objection to the
trust in the two cases in 6 Term. Rep. which have been so much relied
upon in argument on the part of the defendant in error. As, there-
fore, there is in this case no legal incompetence to sue in the parties
suing, and no public interest which stands in the way of the main-
taining this suit for the benefit of those who were the objects of the
licence authorising the trade in question, it does not appear to us
that the right of the plaintiffs to recover can be well resisted on this
ground."
Trotter, pp. 180, 181.
Boulton and Another v. Dobree, 2 Campbell 163.-The Court said:
“Elieson could not, under those circumstances, be considered as an
alien enemy, residing in this country with the King's licence. Al-
though he went at large, it did not appear that the Government
knew he was in the kingdom. To support the replication, it was
necessary either to produce a protection granted to Elieson as an
alien enemy, or to show in some way that his stay here had been
sanctioned by the King after the commencement of hostilities with
Denmark."
Trotter, pp. 183, 184,
Usparicha v. Noble, 13 East 332.—Lord Ellenborough, C. J., said:
“ The legal result of the licence granted in this case is that not only
the plaintiff, the person licensed, may sue in respect of such licensed
commerce in our Courts of law, but that the commerce itself is to be
regarded as legalised for all purposes of its due and effectual prose-
cution. To hold otherwise would be to maintain a proposition repug-
nant to national good faith and the honour of the Crown. The Crown
may exempt any persons and any branch of commerce, in its dis-
cretion, from the disabilities and forfeitures arising out of a state
of war: and its licence for such purpose ought to receive the most
liberal construction. To say that the plaintiff might export goods
specified in the licence from Great Britain to any enemy's country
for the benefit of himself or others (and the licence contains no re-
striction in this particular), and yet to hold that where he has so
LICENSES.
411
done, he could not insure; or, having insured, could not recover his
loss, either on account of his original character of a native Spaniard,
or on account of the places to which or of the persons to whom the
goods were destined, would be to convert the licence itself into an in-
strument of deception and fraud. The Crown, in licensing the end,
impliedly licensed all the ordinary legitimate means of attaining that
end. For adequate purposes of State policy and public advantage,
the Crown, it must be presumed, has been induced in this instance to
licence a description of trading with an enemy's country, which
would otherwise be unquestionably illegal. Whatever commerce of
this sort the Crown has thought fit to permit (which in respect of its
prerogatives of peace and war the Crown is by its sole authority com-
petent to prohibit or permit), must be regarded by all the subjects of
the realm, and by the Courts of law, when any question relative to it
comes before them, as legal, with all the consequences of its being
legal; one of which consequences is a right to contract with other
subjects of the country for the indemnity and protection of such
property in the course of its conveyance to its licensed place or des-
tination, through an enemy's country, and for the purpose (as it
probably will be in most cases) of being there delivered to an alien
enemy, as consignee or purchaser.
Trotter, p. 170.
92
Alciator v. Smith, 3 Campbell 244.-Lord Ellenborough said:
“ The first licence is not granted by the King in virtue of the pre-
rogative royal, but by an officer of State under the provisions of a
particular statute; therefore, when that statute expired, the licence
of 1798 must have expired along with it. The licence granted 1st
June, 1812, contains no recital of any permission to the plaintiff to
reside here; and there is no evidence that Government knew of her
being in this kingdom at the time when the action was commenced.
How can the jury say, therefore, that she was then resident in this
kingdom with the licence and permission of our lord the King?
Trotter, pp. 184, 185.
MARTIAL LAW.
Distinction between martial law and military law.
Martial law has often been confounded with military law, but
the two are very different. Military law, with us, consists of the
“ rules and articles of war,” and other statutory provisions for the
government of military persons, to which may be added the un-
written or common law of the "usage and custom of military serv-
ice.” It exists equally in peace and in war, and is as fixed and
definite in its provisions as the admiralty, ecclesiastical, or any other
branch of law, and is equally, with them, a part of the general law
of the land. But, in the words of Chancellor Kent, “martial law
is quite a distinct thing." It exists only in a time of war, and
originates in military necessity. It derives no authority from the
civil law, (using the term in its mere general sense,) nor assistance
from the civil tribunals, for it overrules, suspends and replaces both.
It is from its very nature, an arbitary power, and “extends to all
the inhabitants (whether civil or military) of the district where it
is in force.” It has been used in all countries and by all govern-
ments, and it is as necessary to the sovereignty of a state as the
power to declare and make war. The right to declare, apply and
enforce martial law, is one of the sovereign powers, and resides
in the governing authority of the state, and it depends upon the
constitution of the state whether restrictions and rules are to be
adopted for its application, or whether it is to be exercised accord-
ing to the exigencies which call it into existence. But even when
left unrestricted by constitutional or statutory law, like the power
of a civil court to punish contempts, it must be exercised with due
moderation and justice; and, as "paramount necessity” alone can
call it into existence, so must its exercise be limited to such times
and places as this necessity may require; and, moreover, it must be
governed by the rules of general public law, as applied to a state
of war.
It, therefore, cannot be despotically or arbitrarily exercised, any
more than any other belligerent right can be so exercised. (Cushing,
Opinions of U. S. Att’ys. Genl., vol. 8, pp. 365, et seq.; Wolfus. Jus
Gentium, $ 863; Grotius, De Jur. Bel. ac Pac., lib. 2, cap. 8; Kluber,
Droit des Gens, & 255; O'Brien, American Military Law, p. 28.)
Halleck, pp. 373, 374.
412
MARTIAL LAW.
413
Laws of different countries.
The laws of different countries, with respect to the application
and exercise of this power, are very different. In the jurisprudence
of France, for example, three conditions of things are carefully de-
fined and provided for: 1st, The state of peace, where all persons are
governed by the civil or military authority, according to the class
to which they belong, and the law applicable to the particular case;
2d, The state of war, where the law and authority governing de-
pends upon the particular condition of the place and circumstances
of the case, the civil authority sometimes acting in concert with, and
sometimes in subordination to the military; and 3d, The state of
siege, where the civil law is suspended for the time being, or, at
least, is made subordinate to the military, and the place is put under
martial law, or under the authority of the military power. This
may result from the presence of a foreign enemy, or by reason
of a domestic insurrection, and the rule applies to a district or
country as well as to a fortress or city. A similar system is adopted
in Spain, and in most of the countries of continental Europe. “The
state of siege of the continental jurists,” says Cushing, “is the proc-
lamation of martial law of England and the United States, only
we are without law on the subject, while in other countries it is regu-
lated by known limitations." The English common law authorities,
and commentators, generally confound martial with military law,
and, consequently, throw very little light upon the subject con-
sidered as a domestic fact, and, in parliamentary debates, it has
usually been discussed as a fact, rather than as forming any part
of their system of jurisprudence. Nevertheless, there are numerous
instances in which martial law has been declared and enforced in
time of rebellion or insurrection, not only in India and British colonial
possessions, but also in England and Ireland. It seems that no act
of parliament is required to precede such declaration, although it
is usually followed by an act of indemnity, when the disturbances
which called it forth are at an end, in order to give constitutional
existence to the fact of martial law. (Block, Dic. de 'l Admin.
Francaise, passim.; Escriche, Dic. de Leg. y Jurisprudencia, passim.;
Cushing, Opinions of U. S. Attys Genl., vol. 8, pp. 366, et seq. ;
Hale, Hist. Com. Law, p. 39; Stephen, Commentaries, vol. 2, p. 602;
Hansard, Parl. Deb., N. S., vol. 11; third series, vol. 115; Grant v.
Gould, 2 H. Blackstone, Rep., p. 98; Blackstone, Commentaries, vol.
1, p. 136; Bowyer, Universal Pub. Law, p. 424.)
Halleck, pp. 374, 375.
414
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
.
Laws of United States.
Martial law is not mentioned by name in the constitution or
statutes of the United States, nor is there much light thrown upon
the subject by the constitutions and laws of the several states of the
union, or the decisions of our courts. It is true that the constitution
recognizes the fact that there may be cases of rebellion and invasion,
but it has made no general provision for the supposable or necessary
incidents to such a condition of affairs. The only clause having
direct relevancy to this subject, is the declaration that "the privilege
of the writ of habeas corpus shall not be suspended, unless when, in
case of rebellion or invasion the public safety may require it.” Now
the suspension of the writ of habeas corpus is not, in itself, a declara-
tion of martial law; it is simply an incident, although a very important
incident to such a declaration. In other words, the incident is con-
stitutionally provided for, while the substance, or general principle,
is merely recognized, but in no other manner alluded to. Probably
the framers of that instrument saw the difficulty of attempting to
regulate, by any fixed rules, that which results from paramount neces-
sity alone, and which from its very nature, is scarcely susceptible of
minute regulation. Practically, in England and the United States,
the essence of martial law, is the suspension of the privilege of the
writ of habeas corpus,—that is, the withdrawal of a particular per-
son, or a particular place or district of country from the authority
of the civil tribunals. A mere declaration of martial law, no matter
how much, "in case of rebellion or invasion, the public necessity may
require it,” would be utterly useless unless accompanied by a sus-
pension of the privilege of the writ of habeas corpus; for if the local
civil authorities were permitted, in such a case, to enforce this writ,
they might, and some probably would, render the military powerless
to provide for “the public safety.” Hence in the United States, the
two,-martial law and the suspension of the writ,-although differ-
ing as the whole differs from a part, have been practically regarded
as one and the same thing. The clause of the federal constitution
which restricts the suspension of this writ to cases where “ the public
safety may require it," is contained in the first article of that instru-
ment, and, hence, it has been inferred by some, that inasmuch as that
article relates principally to the powers of congress, it was intended
that congress alone should have power to suspend this writ. But this
negation of power is general in its terms, and is found in the section
of things denied, not only to congress, but to all other branches of
the federal government, and to all the states. It is not a delegation
of power, but a limitation,-a negative rather than a positive enuncia-
tion,--of a power, the previous existence of which is recognized;
and this negative reaches all the functionaries, legislative and execu-
tive, civil and military, not only of the federal government, but also
MARTIAL LAW.
415
of the state governments; that is to say, there can be no valid sus-
pension of the writ of habeas corpus, "unless when, in the case of
rebellion, or invasion, the public welfare may require it.” There
must be two coëxisting facts, in order to make it valid; 1st, The
fact of “rebellion or invasion;" and 2d, The fact that “the public
safety requires it." It is very evident, from their nature, that both of
these facts may occur when congress is not in session, or, if in session,
may occur in some remote part of the country—say in Oregon or
California-where its action could not reach till long after the public
exigencies had passed. In such a case how is “the public safety'
to be provided for, if congress alone can suspend this writ? Again,
these two facts may occur in a state where there is a rebellion against
the state government, but not against any authority of the United
States; may not the state government, in accordance with its own
constitution, suspend this writ? It is so held. But, if it be true
that the federal constitution confines this power to congress alone,
how can it be exercised by a state? And if by a state, why not by the
executive of the United States? “The executive power” of the
government is vested in the President, and he is the "commander in
chief of the army and navy of the United States, and of the militia
of the several states when called into the actual service of the United
States," and it is his duty to resist an “invasion,” and to suppress
an “insurrection;" it would therefore, seem to properly devolve
upon him, and upon those acting under his authority for the accom-
plishment of these objects, to enforce martial law, or to suspend the
writ of habeas corpus, "in case the public safety may require'it.”
If the previous action of congress be necessary, in each particular
case, to render such suspension valid, it is evident that there can
scarcely ever be a valid suspension of this writ, for “the public
necessity” will almost always have passed before any legislative
action can be had in the premises. It would, therefore, seem more
consonant with the principles of legal interpretation, and with the
nature of the case, to regard this clause in the constitution as a limita-
tion of a general power existing in the government, rather than as
conferring or delegating that power to any particular branch or func-
tionary of that government, and, consequently, that this power does
not belong exclusively to congress, but may also be exercised by the
executive, subject always to his liability to impeachment by congress.
It must be admitted, however, that commentators on the constitu-
tion have expressed the opinion that this power is vested in congress
alone; but they seem to have assumed this construction, rather than
to have fully considered and discussed the question in all its bear-
ings. There has not been, so far as we are aware, any authoritative
decision of the supreme court of the United States on the subject, for
416
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the question was not raised in ex parte Bolman and Swartout, (4
Cranch. R., p. 101;) but the inferior courts have generally held that
the direct action of the legislative power is necessary in all cases to
authorize the suspension, and that, without this essential prerequisite,
they would enforce the writ in all places, against all persons, and
under all circumstances whatsoever. It should be remarked, how-
ever, that some of these opinions have been given in cases of conflict
between the courts and the executive or military authorities, where
passions were excited, and where the judges appeared more anxious to
exercise their own prerogatives than to preserve and sustain the
government of their country. Judicial opinions, given under such
circumstances, are entitled to very little weight. The judges who
rendered these decisions seem to have overlooked the fact that war,
resulting from rebellion or invasion, is, from its very nature, a sub-
stitution of military for civil authority. That the latter authorities
do not, and can not, perform their ordinary functions, is to be pre-
sumed from the fact that war exists, for if the courts could enforce
the laws there would be no occasion for the action of the military
power—there could be, constitutionally and legally, no war. More-
over, when a military force is called out to repel an “invasion," or to
suppress a “rebellion,” it is not placed under the direction of the
judiciary, but under that of the executive. Suppose the military
force, legally and constitutionally called into service for the purposes
indicated, should find it necessary, in the course of its military opera-
tions, to occupy a field, or garden, or to destroy trees or houses, be-
longing to some private person, can a court, by injunction, restrain
them from committing such waste? It can do so in time of peace,
and, if its powers are to continue in time of war, the judiciary, and
not the executive, will command the army and navy. The taking or
destroying of private property in such cases is a military act-an
act of war, and must be governed by the laws of war; it is not pro-
vided for by the laws of peace. In the same way, a person taken and
held by the military forces, whether before, or in, or after a battle,
or without any battle at all, is virtually a prisoner of war. No mat-
ter what his alleged offense, whether he is a rebel, a traitor, a spy,
or an enemy in arms, he is to be held and punished according to the
laws of war, for these have been substituted for the laws of peace.
And for a person so taken and held by the military authority, a writ
of habeas corpus can have no effect, because, in the words of the U.
S. supreme court, “the ordinary course of justice would be utterly
unfit for such a crisis.” But this view has been objected to on the
ground that it allows too much power to the executive. This objec-
tion is answered by the court in the same case, as follows: “It is said
that this power in the President is dangerous to liberty, and may
be abused. All power may be abused if placed in unworthy hands.
MARTIAL LAW.
417
But it would be difficult, we think, to point out any other hands in
which this power would be more safe, and at the same time equally
effectual." (Luther v. Borden, 7 Howard Rep., p. 1; Martin v. Mott,
12 Wheaton Rep., p. 19; Story, Com. on the Constitution, $1342;
Tucker's Blackstone, vol. 1, p. 292; Johnson v. Duncan, et al., 3 Martin
Rep., O. S., p. 530.)
Halleck, pp. 375–379.
We remark, in conclusion, that the right to declare, apply and
exercise martial law, is one of the rights of sovereignty, and is as
essential to the existence of a state as is the right to declare or carry
on war. It is one of the incidents of war, and, like the power to take
human life in battle, results, directly and immediately from the fact
that war legally exists. It is a power inherent in every government,
and must be regarded and recognized by all other governments; but
the question of the authority of any particular functionary to exercise
this power is a matter to be determined by local and not by inter-
national law. Like a declaration of a siege or blockade, the power
of the officer who makes it is to be presumed until disavowed, and
neutrals, who attempt to act in derogation of that authority, do so at
their peril. (Vide Post, chap. xxiii; Cushing, Opinions of U. S.
Atty Gen., vol. 8, pp. 365, et seq.)
Halleck, p. 380.
Rules and limitations.
The general in command, on assuming military occupation, is au-
thorized to proclaim martial law, and it was so held in the Dubos case
(Boutwell's Report, 93; Moore, 3319); and, as was further held in
that case, the law properly applied to aliens, and they were bound
to obey its regulations the same as other inhabitants.
This does not, however, authorize the military commander to act
in an arbitrary manner, but, he having settled and recognized certain
restrictions to his own authority, as was stated in the same case, and
announced the principles and rules of his administration, and the in-
structions of the government for the army of the United States re-
quiring, whenever feasible, that martial law should be carried out in
cases of individual offenders in military courts, it was held by a
majority of the commission that he had no power of arbitrary im-
prisonment, and that an attempt to impose it was a violation as well
of his own proclamation as of the rules and articles of war.
The rules and limitations of martial law were very extensively dis-
cussed by Commissioner Aldis in the dissenting opinion in this case
(Boutwell's Report, 217).
Ralston, pp. 300, 301.
418
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
“Martial law," said the Duke of Wellington in the House of
Lords, "is neither more nor less than the will of the general who
commands the army. In fact, martial law means no law at all.
Therefore the general who declares martial law, and commands that
it shall be carried into execution, is bound to lay down distinctly the
rules, and regulations, and limits according to which his will is to
be carried out." Hansard, 3rd Series, cxv. 881. "Martial law sweeps
civil law by the board and takes the place of it.” Speech of J. Q.
Adams, Moore's United States Arbitrations, p. 3322.
Holland, p. 14.
Martial law consists of such rules as are adopted, at his own dis-
cretion, by a Commander-in-Chief in the field, supplementing, or
wholly or partially superseding, the laws ordinarily in force in a
given district. He will, for instance, treat certain acts as offences.
He will decide upon the means to be taken for ascertaining the guilt
of persons charged with such acts, and the punishment to be inflicted
on such persons, if found guilty. He should, so far as may be, make
generally known the principles by which he intends to be guided.
Holland, pp. 14, 15.
How limited.
In exercising his discretion in the administration of martial law, a
commander should always be guided by the laws and customs of war,
as generally accepted.
Holland, p. 15.
Inquiry by court.
Punishment under martial law should, so far as possible, be in-
flicted only after inquiry by a military court, convened for the pur-
pose.
Holland, p. 15.
Degree of stringency.
Martial law is most stringent where hostile armies are face to face.
It may be less stringently applied in districts which are fully occu-
pied than in those in which a renewal of hostilities may probably be
expected.
Holland, p. 15.
Application of martial law.
Martial law applies to all persons, and to all property, within the
district over which it is in force, irrespectively of the nationality of
such persons, except in the case of diplomatic agents accredited by
neutral states to the territorial sovereign.
In particular, a general commanding an army in the field, h.
during the continuance of the war, an absolute right to remove fr
any place within the sphere of his operations all persons w!
MARTIAL LAW.
419
presence therein is considered by him to be dangerous or inconven-
ient. He may deport those persons, with as little hardship as can
be avoided, to such a distance as may be necessary effectually to pre-
vent their speedy return.
He may take stringent measures to repress all attempts at inter-
ference with his communications, by road, railway, or telegraph, as
also acts of marauding or assassination.
The presence of an invading Army in a district is of itself, with-
out any special warning to the inhabitants, a sufficient proclamation
that the martial law of that army is in force in that district.
Holland, pp. 15, 16.
When martial law terminates.
No punishment should be inflicted by martial law after the ter-
mination of hostilities, and when recourse can again be had to the
ordinary Courts of Justice.
Holland, p. 16.
Martial law in the home territory.
In time of invasion, or in expectation thereof, exceptional powers
are often assumed by the executive government of a country, acting
usually through its military forces, with a view to resisting the in-
vasion or to the maintenance of good order within its own territory.
The lawfulness of the measures then taken, which are conveniently,
though not necessarily, preceded by a "proclamation of martial
law," or some equivalent notification, is a question not merely of
international law, but also, and more especially, of the national law
of the country in question.
Holland, p. 16.
Control of press.
When Strassburg was occupied, the Prussian Commandant issued
the following order:
The state of siege still continues. Crimes and offenses will be punished
by martial law. All weapons are immediately to be given up. All newspapers
and publications are forbidden till further orders. Public houses to be closed
at 9 p. m., after that hour every citizen must carry a lantern. The municipal
authorities have to provide quarters, without food, for all good men.
Here, it will be seen all newspapers were suppressed for the time
at least. In the Secession War one finds the Federal occupants, not
indeed suppressing the newspapers altogether as at Strassburg, but
restricting the right of publication to certain approved papers and
laying heavy responsibilities on the editor and proprietors for any
“libellous publication, mischievous matter, premature news, exag-
gerated statement, or any comments whatever upon the acts of the
420
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
constituted authorities—even if copied from other papers.” To the
good American the freedom of the Press is an article of belief; he
is quite ready to attribute to newspaper editors a divine right which
his forefathers found intolerable in kings. The action of the Federal
authorities is therefore very strong evidence (were any needed) of
the existence of a war right which warrants the control of the Press
in an occupied territory.
Spaight, pp. 337, 338; Hozier, Franco-Prussian War, Vol. II, p. 69;
Sherman, Memoirs, Vol. II, p. 234,
Martial law for Cape Colony, 1901–1902.
very full and instructive body of martial law regulations for
Cape Colony was drawn up by the British Military authorities in
1901 and supplemented in 1902. The proclaimed districts in the
Colony in which these regulations were enforced were, for all prac-
tical purposes, hostilemand usually bitterly hostile-territory, and
the British troops were really in the position of an occupying enemy
force. The first circular issued in the Colony on the subject of mar-
tial law was made applicable to the Free State by an Army Order of
2nd May, 1900. I can not find any Army Order which applied the
later regulations to the Boer Republics, but they, or regulations of
a similar kind, must have been in force in those countries, as will be
seen from the list of offences and punishments given in the Blue
Books relating to martial law. The regulations I refer to covered the
following points:
Martial Law Regulations.
(Issued May, 1901, finally amended May, 1902.)
1. Arins, ammunition and explosives to be reported to District Commandant
and permit obtained for same. Persons knowing of other persons being in
possession of arms, etc., were liable to punishment for not informing the
military authorities.
2. All travelling, with certain few exceptions (e. g., to market or church),
forbidden unless traveller could produce a permit.
3. In districts in which enemy's presence was reported, the names of all
householders and residents were to be entered on a pass, which was to be at-
tested by an agent of the District Commandant, and posted conspicuously on
each house or farmstead,
4. Traders' and hawkers' licenses suspended; commercial travelers to move
only on a special permit.
5. All parcels in transit to be liable to examination; contraband goods to
be seized and consignor or consignee punished. The carrying of private parcels
in any way other than in Post office mail bags, prohibited.
6. All letters, telegrams, etc., liable to be censored.
7. Meetings of more than 6 persons forbidden, except
(a) with a permit;
(b) religious services in churches;
(c) meetings of Divisional Councils or Municipal Councils;
(d) meetings of persons residing in one house.
MARTIAL LAW.
421
8. Seditious language forbidden.
9. Spreading of alarmist reports forbidden.
10. Circulation of newspapers, pamphlets or periodicals likely to promote
sedition, disaffection or bad feeling prohibited; and persons found in pos-
session of such papers to be punished.
11. Overcharging for goods forbidden.
12. Persons guilty of following offenses to be liable to death or less punish-
ment:
(1) being actively in arms against His Majesty ;
(2) directly inciting others to take up arms against His Majesty ;
(3) actively aiding or assisting the enemy;
(4) committing any overt act by which the safety of His Majesty's
Forces or subjects is endangered.
13. No unauthorized person to wear uniform or any clothes resembling
uniform.
14. All signalling and exposing of coloured lights forbidden,
15. Keepers of hotels and boarding-houses to be answerable for conduct of
residents.
16. Sale of intoxicating liquor restricted.
17. Every person to remain in his or her house from 10 p. m. to 5.30 a. m.
Lights to be out from 10.30 p. m. to 5 a. m., except in cases of sickness or
emergency (to be reported).
18. Regulations as to requisitioning laid down.
19. Military animals or stores not to be injured or removed.
20. All horses, mules, donkeys, oxen, vehicles and equipment to be brought
in to the Commandant on his demand.
No person to be in possession of a cycle or riding horse (or mare) except
with a permit.
21. Obstructing or impeding officers or other persons carrying out orders
of Commandant prohibited.
22. Sketching or photographing defenceworks, or trespassing thereon, for-
bidden.
23. Defacing of martial law notices forbidden.
24. Following acts are offences :--
(1) disobeying an order given by an officer administering martial law;
(2) conduct, etc., to the prejudice of good order or the public safety;
(3) acts or conduct calculated to hamper the movements of H. M.'s
Forces.
In a later edition of the martial law regulations, the following ad-
ditions were made to the above list of offenses :-
25. Persons failing to report the presence of the enemy, or giving the enemy
information, money, food, etc., to be punished.
26. Save under a permit, importation into a proclaimed district, or removal
therefrom, of the following stores prohibited :
(a) Foodstuffs of any kind for men or animals.
(b) Tobacco in any form.
(c) Blankets, rugs and goods of a similar nature.
(d) Harness, saddlery and leather.
(e) Clothing for men and boys and woolen underclothing of any kind.
(f) Boots and shoes and veldschoens.
(g) Horseshoes and nails, and implements for shoeing.
422
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
(h) Bolt-clippers and tools for cutting wire.
(j) Cycles and automobiles.
(k) Armas, ammunition, dynamite or other explosives.
(m) Field-glasses and telescopes.
(The above are “prohibited goods,” corresponding to "conditional contra-
band” in sea war.)
· On farms or homesteads outside the military limits of defended towns or
villages, foodstuffs to be allowed only in sufficient quantities for one, two, or
three weeks' supply, as the Administrator (as the Commandant was afterwards
called) might decide; and persons having more than such quantities on hand
to be punished.
27. No person to have in his possession any horse or mule without a "pro-
tection certificate.”
28. No .compensation to be paid for any animals, supplies or stores which
fall into the enemy's hands owing to failure of claimant to remove them into
safe keeping, nor for animals, etc., which the military authorities were willing
to purchase.
29. Animals, stores, etc., left behind by H. M.'s troops or the enemy to be
brought into nearest defended town or village by person on whose property
they were left.
30. No person to have a cycle or automobile without a permit.
31. Persons in custody attempting or conspiring to escape to be punished-
corporal punishment, not exceeding 25 lashes, might be inflicted.
32. False or fraudulent statements in any report or document, or forging or
tampering with passes, permits, etc., to be punished.
33. Perjury to be punished.
It is interesting to note that there are records of women being pun-
ished for contravening certain of the above regulations. Thus Mrs.
Anna S. Low was sentenced on 2nd April, 1901, by a military court
at Bloemfontein to 6 months' imprisonment with hard labour for
“aiding and abetting the enemy;" and Miss Peters was fined 75
pounds on 6th May, 1901, for giving information to the enemy.” As
the danger to the occupant is the same, the sex of the culprit does not
affect the liability to punishment.
Spaight, 340–343.
Japanese martial law in Manchuria and Korea.
The right of an army, says Professor Ariga, to promulgate martial
law and to establish military tribunals applies not only to an army
operating in a hostile country, but also to one operating in a neutral
or an allied country which circumstances have made the theatre of
war; for two reasons. First, an army must be in a position to
safeguard itself by having suitable laws for that end in force; sec-
ondly, even if the existing laws are sufficient, the local tribunals
may not wish, or may be unable, to apply them for the protection of
the occupying troops. It was for this reason that Japan established
and enforced martial law in Manchuria (a province of a neutral
country, China) and in Korea (an allied country.)
MARTIAL LAW.
423
No uniform code of martial law regulations was used by the
Japanese armies. The Headquarters Staff of the army of Man-
churia considered it undesirable to formulate any penal regulations,
for two reasons: one a political reason, because, China, being a
neutral Power, it was thought that her susceptibilities might be
wounded by the promulgation of a rigorous law (as martial law
must be) affecting her subjects; the other a legal reason—that if
there were a body of fixed regulations they would have to be applied
strictly and the punishment would not always be proportionate to
the offence. Professor Ariga, in whose absence this ruling of the
Headquarters Staff was given, does not agree with it. He holds that
a general universally applicable Règlement should have been drawn
up, and that for three cogent reasons:-
(1) It is contrary to the principles of repressive legislation not to make
known the acts which are, or are not, punishable.
(2) The end of martial law is repression; the threat of punishment is
more valuable than the punishment itself and therefore notification of the
laws which apply is of great importance.
(3) Unlike the ordinary penal law, martial law requires no fixed and defi-
nitive formulae; it uses general clauses to a much greater extent.
The result of the ruling given by the Staff was that there were
a whole sheaf of martial law regulations in force. “Each army,
each garrison, each post commandant, each commission of military
administration had its own martial law and its own special regula-
tions thereunder.” At Port Arthur, there were in existence the mar-
tial law of the garrison of Liao-Tung, of the naval station of Port
Arthur, of the fortress of Port Arthur, and of the commission of
military administration; it was consequently a work of art for the
gendarmes to decide which law was to be applied in any case. There
is little doubt, I think, that Professor Ariga makes out a case for
his view (which had the support of all of the International Law
advisers in the field) as against the view of the Headquarter Staff.
The following is an extract from the martial law regulations which
were in force in the armies in Manchuria and Korea, and in certain
garrisons and military commissions.
Substance of Martial Law.
All the laws and regulations relating to the punishments for acts detrimental
to the Japanese Army in Korea and Manchuria cannot be given here. All that
can be done is to indicate the principal acts for which punishment can be
awarded.
1. To oppose our land and sea forces, military authorities or persons at-
tached to our army and navy.
2. To be attached to the enemy and act hostilely against our army without
being clothed in a regular uniform.
424
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
3. To act as a spy, to conceal a spy, or assist his flight.
4. To communicate to the enemy the movements of our land and sea forces.
5. To guide our army badly.
6. To spread false news.
7. To make a noise or utter outcries of a nature to disturb our land and
sea forces.
8. To publish placards detrimental to our army.
9. To disturb public order by meetings, assemblies, publication of news-
papers, and reviews, posting up placards and other similar means.
10. To aid or facilitate the movements of the enemy.
11. To guide the enemy.
12. To guide or assist knowingly the flight of the enemy.
13. To deliver up prisoners of war, hide them and assist their escape.
14. To destroy, burn or steal military stores, military buildings such as
depots, barracks, arsenals, , military stores, etc.
15. To destroy or spoil military stores, arms and other articles left on the
field of battle by our army or the enemy.
16. To destroy or burn the various means of military communication, such
as telegraph wires, railways, bridges and highways, canals, etc., and to cause
inconvenience to the military postal service.
17. To destroy, steal, damage or change the position of signals, indicating
posts, placards, etc., rendered necessary by military operations.
18. To prejudice the needs of our army by rendering water not drinkable, or
by hiding vehicles, commodities, supplies and fuel.
19. To destroy or prevent the working of aqueducts, or to suppress the elec-
tric light.
20. To coin or alter money, notes and Japanese military assignats and to
make use of them whilst being aware of their fraudulent character.
21. To oppose requisitions in general, such as the lodgment or hiring of
coolies, or to fail to comply with any requisitions.
22. To prevent by trickery or threat any duty imposed on individuals serving
in our army.
23. To be in possession of arms and military stores without authority.
24. To enter ports, batteries, or other prohibited places without permission,
25. To infringe the prohibition against entering or remaining in forbidden
radii.
26. To make trenches in the mountains and hills without authority.
27. To inspect, sketch, photograph or make descriptions of views on land or
sea without authority.
28. To plunder articles belonging to the wounded or dead on the field of
battle.
29. To exhume or destroy dead bodies on the field of battle or to steal articles
found on them.
30. To put to death Japanese or allied soldiers.
31. To assassinate or steal with violence.
32. To provide opium, to procure the instruments for smoking it and a favour-
able place to enable our soldiers, allies and other persons attached to the
army to make use of it.
33. To commit any other acts detrimental to the Japanese Army.
34. To disobey orders given by our army.
35. Acts detrimental to our army of which mention is not made above will be
punished according to the military or naval penal law, or according to the
ordinary penal code of Japan.
MARTIAL LAW.
425
An excellent method of acquainting the illiterate people of Man-
churia with their obligations to the occupying Japanese forces was
adopted in the 1st (General Kuroki's) army. Proclamations were
placarded in which no sentence exceeded four Chinese words and in
which the inhabitants were warned, in the simplest language, against
refusing to fill requisitions, against sending information to the
Russians, against cutting telegraphs, etc., etc. The same plan was
followed in the case of the Proclamations forbidding the concealment
of weapons found on the field of battle. The Japanese authorities
devoted especial attention to controlling the possession of arms by
the inhabitants, and therein they showed their practical wisdom,
for the limitation of the right to keep weapons is one of the
arcana of the successful government of an occupied province. Had
the British authorities seen that their orders as to the surrendering
of arms were properly carried out, the last South African War might
have ended far sooner that it did. The burghers surrendered“ arms,
but the arms were largely of a kind which no self-respecting Boer
would go shooting rock rabbits with. The Mausers were often hid-
den away till it suited the owner's purpose to go on commando
again; and even when rifles of a serviceable nature were really sur-
rendered, they were sometimes “ destroyed” by the British in such a
way that they could be repaired and used again. De Wet says that
he himself carried the 200th rifle which had been “burnt" at
Potchefstroom and recaptured when the British left. In the Russo-
Japanese War, the inhabitants of Manchuria were strictly forbidden
to possess arms except in certain defined cases. Very large numbers
of rifles were abandoned by the Russians on the battle fields and these
were at first secretly appropriated by the Manchurians. The condi-
tion of the country gave them some justification for doing so. Even
in peace time, the Chinese police were practically useless for the
purpose of keeping the Chunchuses and robbers in check; and the
latter were still more completely masters of the situation in the
disorganized state of the country caused by the war. It was essential
that some of the inhabitants should have weapons for the general
protection of the scattered homesteads and villages, and the Japa-
nese generals therefore, while absolutely forbidding the removal of
rifles or rifle barrels from the battle fields and severely punishing
any who offended in this respect, issued weapons on loan to the resi-
dents in the villages. The chief men of each village were made
responsible for the proper use of the arms loaned and were charged
with protecting the railways, telegraphs, depots, etc., in the locality.
If they failed in their engagement, the village was fined, or, in ag-
gravated cases, burnt down.
Spaight, pp. 343–347; Ariga, pp. 378_385, 413, 414, 421, 443; De Wet,
Three Years' War, p. 192.
110678-1928
426
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
British military tribunals.
Breaches of martial law regulations and offences against the laws
of war are dealt with by military tribunals. In the British army
such tribunals are called “military courts under martial law," to
distinguish them from“ courts-martial,” which are courts established,
either in peace or war, to try persons subject to the British Army
Act. Under the procedure followed in the South African War, any
commanding officer could convene a military court, or he could depute
his power to an officer under his command not below the rank of
captain. The courts had unlimited power, and might, in addition to
the punishments authorised by the Army Act (death, imprisonment
with or without hard labor, and penal servitude) impose a fine on
the defendant. Fines were, as a matter of fact, inflicted in a very
large number of cases; there are records of Boers being fined 500
pounds and even 1,000 pounds. The court consisted of three mem-
bers at least, of whom one was President, with a casting vote. Pro-
ceedings were held in open court and all evidence and the defence
were written in full. Generally speaking, the procedure of field
general courtsmartial was followed. The verdict went by the ma-
jority, but the concurrence of the whole court was required for a
death sentence. Sentences of death or penal servitude were confirmed
by the commander-in-chief; other sentences by the convening officer.
As a matter of fact, all sentences of death or penal servitude were
l'eviewed by Sir Richard Solomon, Attorney-General of the Cape,
before being sent to the commander-in-chief for confirmation.
Smaller breaches of martial law regulations were not brought before
military courts, but were dealt with summarily by the officer admin-
istering martial law (or some officer of at least captain's rank deputed
by him), or by the Civil Magistrate, who for this purpose acted on
behalf of the administrator and not qua Civil Magistrate. At these
summary trials no higher punishment could be inflicted than 30 days
imprisonment or a fine of 10 pounds.
Spaight, pp. 347, 348.
French and German military tribunals.
The French military tribunals for the trial of hostile nationals are
composed in the same way and follow the same procedure as the
councils of war which try French soldiers for military offences. The
German system is different; the tribunals established under martial
law "render justice as founded on the essential laws of justice," and
are bound to no special form or procedure. They deal with every
case on its merits—an excellent plan were it certain that every court
were enlightened, unprejudiced, and calmly judicial. Precedents
and rules of procedure are unquestionably valuable in keeping up the
general standard of the administration of justice, if not to an ideal,
MARTIAL LAW.
427
at least to a respectable level. The stereotyped penalty pronounced
by the German courts in 1870-1--death-was in a great many cases
not inflicted
Spaight, pp. 348, 349.; Bonfils, $ 1173; Kriegsbrauch im Landkriege,
p. 65.
Japanese military tribunals.
The tribunals employed by the Japanese in the war with Russia are
called by Professor Ariga “courts-martial.” They were special war
courts, composed of officers and military or civil officials, and their
procedure was very expeditious, as compared with the slow and
laborious procedure of the “councils of war," which tried offences
(spying, war treason, etc.) against the laws of war. A minimum of
three members composed the bench and the verdict went by à ma-
jority. The accused was given means to defend himself, but con-
trary to the rule in an ordinary penal trial, his guilt was assumed in
the absence of proof of his innocence. The death penalty was pre-
scribed for nearly all the contraventions of martial law, but the court
was allowed to inflict a lighter penalty, or even to acquit the accused
at its discretion. “The end of martial law," says Professor Ariga,
“ being intimidation rather than the punishing of acts which are im-
moral or contrary to the public interest, when this end is attained, it
is unnecessary to punish every infraction.”
Spaight, p. 349; Ariga, pp. 381, 385.
Burden of proof.
The principle of throwing the onus of proving his innocence on the
accused appears unjust and cruel, but it is a necessary principle of
martial law justice. The occupant's interest is to secure the main-
tenance of order and compliance with his martial law regulations,
and he cannot, under war conditions, be expected to adhere scrupu-
lously to the rule of abstract justice which forbids the presumption
of anyone's guilt and which regards with horror the punishing of an
innocent person. Vicarious punishment is the very soul of reprisals
and reprisals are still, unfortunately, a living part of martial jus-
tice. “In campaign law, the great object is to punish someone, and
by preference, the guilty, for every offence committed; but in no case
to leave an offence unpunished.” One may perhaps say that it is from
a blending of the principle of reprisals with the principle of ordinary
justice that the rule of presuming the guilt of a person charged be-
fore a martial law tribunal has resulted.
Spaight, pp. 349, 350; Sutherland Edwards, The Germans in France,
p. 285.
Punishments.
The punishment of offences against the laws of war or the martial
law regulations of an occupying belligerent usually takes the form
428
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of imprisonment or capital punishment or fine. But in some modern
wars confiscation of goods has been resorted to, and some authors
have questioned the legitimacy of such a form of punishment. When
the Germans occupied Alsace-Lorraine they decreed that every in-
habitant who left the province to join the French army should be
punished by “the confiscation of his fortune, present and future,
and a banishment of ten years." In the last Anglo-Boer War, four
burghers of the Free State were sentenced to one year's imprisonment
with hard labour and confiscation of all their lands, goods and
property, for occupying premises on which they knew arms to be con-
cealed; and this sentence was confirmed by the Commander-in-Chief.
Again, two Boers were sentenced to confiscation of real and personal
property, and to penal servitude for three years, for concealing arms
and violating the oath of neutrality; in this case, the Commander-
in-Chief remitted the confiscation of real property. There were
many other cases in which the military courts ordered the confisca-
tion of goods for breaches of martial law regulations, but such sen-
tences were not approved by the confirming officer. The question
arose again in the Russo-Japanese War, in connection with the con-
fiscation of the goods and houses of some Chinese merchants of Dalny
and Mukden who were proved to have been guilty of “war treason "
but who fled before the Japanese authorities could seize their persons.
Professor Ariga considers that the confiscation in this last case may
be justified, not on the ground that it is a punishment under the
Chinese penal law, but by the precedents of modern European war,
which show that confiscation is known to the customs of war. But
when one gets back, behind precedents, to the principle of the matter,
it is by no means easy to give a definite answer as to the propriety
of confiscation. It is a method of punishment which is conspiciously
open to abuse; but so, in almost equal degree, is punishment by fine.
Bluntschli raises the objection to the German decree of 1870 that the
effects of the punishments prescribed by it last beyond the period of
hostilities, whereas martial law punishment ought to end with the
war. Yet if no punishment of a military court were ever to outlast
the war, the kind of imprisonment that is really deterrent-one year
and over-would have to be left outside the category of military
punishments; for the tendency of history is to make wars short and
swift and if a “Seven Weeks' War" is abnormal, a war that is
fought and done with in a year or thereabouts may fairly be taken as
representative, in the matter of duration. If a court cannot in-
flict heavy sentences of imprisonment, it will be disposed to insist on
capital punishment in many cases in which a less penalty, but still a
severe one, would have sufficed. Again, as regards the ethics of
confiscation, one may argue in support of it that if a living dog is
MARTIAL LAW.
429
better than a dead lion, a man despoiled is better than a man killed;
and that if his 'fate be in the balance, he would himself gladly
purchase his life by the surrender of his goods. It is allowable
to fine an offender say 1,000 pounds: is not this confiscation? In
the case of the Chinese merchants, it was essential to impose a
heavy punishment for the sake of intimidation, and as the men
had fled, the only possible punishment was the seizing of their
property. So far, again, as the victim is affected, there is no differ-
ence between the destruction of his property and the confiscation of
it. In every modern war, the destruction of houses, farm buildings
ind villages has been one of the modes in which the outraged majesty
of war law has avenged itself; such a form of punishment seems to
recommend itself above all others to the military mind, if one may
judge from the events of history. Whole towns (e. g., Ablis and
Fontenoy) were burnt down in the war of 1870-1, to punish the in-
habitants for breaches of war law. The record of the farms and
buildings burnt in 1900 by the British troops, as a punishment, and
before the policy of devastation was adopted, fills many sombre
pages of a British Blue Book. One may question, as The Times his-
torian does, the policy of burning houses as a method of intimidation,
but the war right of an occupant to punish in such a manner is un-
doubted. In January, 1902, Sir Henry Campbell-Bannerman in-
quired, in the debate on the Address, if farm-burning had been aban-
doned ? Mr. Balfour replied:
As we understand the matter, farm-burning is not given up in those cases
where farm-burning is a military necessity. ... The Boers are perfectly alive
to the fact, as we are, that by the laws of all civilised warfare there are cir-
cumstances which render it expedient, right, and even necessary, to use
the penalty of farm-burning. And when these circumstances arise, I hope
and believe that our generals will not shrink even from that necessity, painful
as it must necessarily be.
The first indiscriminate destruction was, however, stopped in
November, 1900. An officer who belonged to a column which was
largely employed on such punitive work relates that as there were
so many grounds on which farms could be burnt–because they had
sheltered Boers, because the owners were absent on commando, be-
cause the railway had been destroyed in the neighbourhood-his
column generally burnt all they came to—to “make sure "only
sparing those of which a list had been handed to the column on
setting out. The outcry in England led to the abandonment of this
policy, which was clearly both unjust and impolitic, and on 18th
November, 1900, Lord Roberts issued the following order:
As there appears to be some misunderstanding with reference to burning of
farms and breaking of dams, Commander-in-Chief wishes the following to be
lines on which General Officers Commanding are to act :-
1
430
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
No farm is to be burnt except for act of treachery, or when troops have been
fired on from premises, or as punishment for breaking of telegraph or railway
line, or when they have been used as bases of operations for raids, and then
only with direct consent of General Officer Commanding, which is to be given
in writing; the mere fact of a burgher being absent on commando is on no
account to be used as reason for burning the house. All cattle, waggons, and
foodstuffs are to be removed from all farms; if that is found to be impossible
they are to be destroyed, whether owner be present or not.
Here, it will be noted, the principle a perfectly sound one—is
affirmed that property, may properly be destroyed as a punishment
of breaches of war law or martial law regulations; and if it may be
destroyed, it seems to me to be illogical and almost pedantic to say
that it may not be confiscated.
Spaight, pp. 350–353; Hall, p. 477, note; Ariga, pp. 397-401; Blunt-
schli, § 540; Times History South African War, Vol. IV, p. 494;
Wyman's Army Debates, Session 1902, Vol. I, p. 45; Proclamations
of Lord Roberts (Cd. 426), p. 23.
Nature of martial law.
The gentle reader who has survived my last dozen pages will
doubtless have come to the conclusion that martial law is a very
drastic, tyrannous, and primitive law--a law which is a jumble of
bad old laws-curfew laws, sumptuary laws, conventicle acts, grand-
motherly acts which interfere intolerably with individual liberty,
which regulate the daily life of the citizen out of all conscience.
Indeed, it is so; but there is a cogent reason for its being so. Martial
law must be primitive and despotic because it deals with a primitive
condition of things, in which the rule of might prevails. It is the
law which runs as between the enemy and the local resident and
which is established for the former's security; and, as I have said,
it must, in the nature of things, consider the enemy's interests first
and principally.
Spaight, p. 353.
It remains to explain more fully the martial law which has been
spoken of as governing the relations between the invaders and the
invaded, and so entering as an element into the law administered by
an occupant. It must be distinguished both in its purpose and in its
rules from the martial law or "state of siege” to which governments
often have recourse in times of internal disturbance: the internal
measures which pass under that name can be discussed only in con-
nection with the constitutional laws of the respective countries in
which they are taken. It must also be distinguished from the mili-
tary laws issued by governments for the discipline and conduct
of their armies. So far as these deal with the conduct of the re-
spective armies towards the populations of the countries invaded by
MARTIAL LAW.
431
-
them, they cover the same ground as the martial law of international
jurists and ought to be in accordance with whatever has been agreed
on as internationally binding, but, being the regulations of par-
ticular states, they have no international force. The martial law of
international jurists consists of the regulations which by convention
or approved custom are agreed on as internationally binding for the
relations between invaders and invaded, and, as such, is not peculiar
to the cases in which invasion has ripened into occupation. It comes
into play from the first moment of an invasion, but during an occupa-
tion its rules are increased in stringency in proportion to the greater
security which the invader claims to enjoy in the midst of a popula-
tion which he benefits by maintaining social order among them.
Its courts of justice are courts martial, to be held with as great
security for full enquiry and fair dealing as circumstances permit,
but so that drumhead courts martial are not necessarily excluded.
Its code is draconic, and in the case of occupation is thus described
by Hall. “All acts of disobedience or hostility are regarded as pun-
ishable, and by specific rules the penalty of death is incurred by per-
sons giving information to the enemy or serving as guides to the
troops of their own country, by those who while serving as guides to
the troops of the invader intentionally mislead them, and by those
who destroy telegraphs, roads, canals, or bridges, or who set fire to
stores or soldiers' quarters. If the inhabitants of the occupied terri-
tory rise in insurrection, whether in small bodies or en masse, they
cannot claim combatant privileges until they have displaced the occu-
pation, and all persons found with arms in their hands can in strict
law be killed, or if captured be executed by sentence of court martial.
Sometimes the inhabitants of towns or districts in which acts of the
foregoing nature have been done, or where they are supposed to have
originated, are rendered collectively responsible and are punished by
fines or by their houses being burned.”
Even so humane a writer as Hall felt himself unable to rule out
any of these claims as never being admissible, although he observes
that “in' very many cases, probably indeed in the larger number, the
severity of the measures adopted by an occupying army is entirely
disproportioned to the danger or the inconvenience of the acts which
it is intended to prevent; and when others than the perpetrators are
punished, the outrage which is done to every feeling of justice and
humanity can only be forgiven where military necessity is not a mere
phrase of convenience but an imperative reality.”
Probably however the above list of lawful severities is capable of
some revision. That the inhabitant of an occupied district should
incur death for giving information to the enemy, or for serving as
a guide to the troops of his own country, is a relic of the time when
432
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
occupation meant conquest, transferring the allegiance of the occu-
pied population. There is no other foundation for the epithet of
“ war-treason" (kriegsverrath) which German writers apply to
every act of a member of that population directed against the occupy-
ing army, for the duty owed in return for the maintenance of order
will not extend so far. No act of that kind can be regarded as trea-
sonable without violating the modern view of the nature of military
occupation, and to introduce the notion of moral fault into an in-
vader's view of what is detrimental to him serves only to inflame
his passions, and to make it less likely that he will observe the true
limit of necessity in his repression of what is detrimental to him.
And in the cases of giving information and serving as guide to one's
own people, the attempt at sanguinary repression would have the
additional demerit of inutility, since it could not succeed except
among a people more abject than it would be possible to discover.
And when the inhabitants of an occupied district rise in insurrection,
and satisfy the conditions of loyal fighting laid down by H I, it is
difficult to refuse the privileges of combatants to a body of them oper-
ating on a scale which may fairly be considered as war. If they are
to have those privileges when “they have displaced the occupation,
they cannot reasonably be refused them when taking the necessary
means of displacing it; and that H I applies in occupied territory
may be inferred from the restriction of H II to unoccupied territory.
Westlake, vol. 2, pp. 98-101; Hall., sec. 156.
In time of war and when a country is invaded or threatened with
invasion by the enemy, every Government finds it necessary to
assume certain exceptional powers both over persons and property,
which are not exerciseable in a state of peace. Under the British
system this result is attained by a “proclamation of martial law.”
The judgment in Marais' (L. R. 1902, A. C. 109) case decides in
effect (1) that when a state of war actually prevails, the operation
of the ordinary law will be deemed to be suspended by martial law
in all that relates to the war; (2) that acts done by the military
authorities in the exercise of martial law will thereupon cease to be
justiciable by the ordinary civil Courts; and (3) that under the
English system the test of the legality of martial law and of pro-
ceedings thereunder is not whether the civil Courts are still sitting
but whether a state of war exists or not. Incidentally, the case also
decides that when once a state of war exists, martial law may be
exercised even in places outside the range of active hostilities; a
conclusion justified by modern conditions, which very often require
the adoption of protective or punitive measures at places distant
from the scene of actual hostilities. Nor have the civil Courts
any jurisdiction to review the judgments of Courts sitting in the
MARTIAL LAW.
433
exercise of martial law; there being no analogy between the proceed-
ings of military Courts sitting under the Army Act and those of
Courts sitting in the exercise of martial authority, which do not
really administer law. From this it will be seen how largely, even
under the British system, the intervention of a state of war serves
to exclude the application of the ordinary law, the jurisdiction of
the ordinary courts, and the recognition of ordinary rights. And
the same consequences, even though reached by other means, will
also be found to attach under other systems. Under the British sys-
tem, recourse to martial law is sometimes, although rarely, sanc-
tioned beforehand by statute. In default of this, it is usual, both in
view of some uncertainty in the law and also for the purpose of
pre-
venting vexatious suits that might otherwise be brought, to pass
subsequently an Act of Indemnity, indemnifying all persons for acts
done bonâ fide in the suppression of hostilities or for the public
defence, and confirming sentences passed by the military tribunals.
So far we have touched only on the application of martial law in
the home State and by the territorial Power. But a material law,
although of a somewhat different character, may also be applied, in
time of war, in the territory of the enemy State and by a belligerent
invader. This resembles the former in so far as it has the effect of
suspending the ordinary law and ordinary legal rights, in all that
relates to the war; but differs from it in so far as it depends wholly
on the will of the invader, subject only to such limitations as may be
imposed by custom or convention and regard for international
opinion.
There is also a further distinction between each of these kinds
of "martial law” and what may be called “military law;" meaning
thereby that special body of rules which each State provides for the
governance of its armed forces. But "military law” has no inter-
national significance, except in so far as, between the signatories of
the Hague Convention, No. 4 of 1907, it is required to conform to the
regulations annexed to that Convention.
Cobbett, pt. 2, pp. 47-49.
Kinds of Law applied in War.-The conduct of war between
two or more States, and the exceptional conditions to which it
gives rise, necessarily involve some derangement of the ordinary law.
In the first place, the members of the armed forces on either side
are subject to their own military law; although this applies also
in time of peace, and has no international bearing except that already
noticed. In the second place, the exigencies of war commonly require
an assumption of exceptional powers, not warranted in time of peace,
over both the persons and property of private individuals that are
434
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
found within its range, even though such persons are unconnected
with the armed forces on either side. And this may arise either in
the home territory, as between the territorial Power and those subject
to its jurisdiction; or in the territory of an invaded State, as between
the invader and persons resident or found therein. Finally, there
are the laws and usages of war, now largely codified by Convention,
which regulate the conduct of war between the parties, and which
impose conditions and restrictions to which both martial law and
military law are required to conform.
Martial Law in the Home Territory.—Martial law, despite the
name, is not strictly a form of law, but an extra-legal state or con-
dition, under which the ordinary law and ordinary rights are
replaced, so far as public defence or necessity may require, by the
action of the military or some other summary authority. But in
order to impose some limit on this, it is usual to intimate in more
or less general terms the nature of the rules or discipline that will be
enforced; whilst in order to ensure that it will be applied with
sufficient deliberation and regularity, its administration is usually
deputed to courts which are styled Courts Martial; although these
Courts are in fact constituted by military officers, proceed by sum-
mary methods, and do not strictly fall within the category of regular
courts. Such a condition of things is commonly inaugurated in
European countries by the proclamation of " a state of siege”; whilst
under the British and American systems it is usually established by
a proclamation of martial law, the effects of which have already
been described. Martial law in this aspect is mainly a matter of
municipal concern, although it has a certain international bearing
in so far as it may affect the subjects of other States who come within
its range.
Martial Law as applied by an Invader.—When the territory of one
belligerent is invaded by the other, the territorial law will not of
course apply as between the invaders and the inhabitants of the dis-
tricts invaded; whilst even as between the latter its operations will
to a great extent be suspended owing to the fact of invasion. In these
circumstances it is the practice for the invader, both with a view
to his own safety and the success of his operations and with the
object of guarding against that condition of lawlessness which might
otherwise arise, to proclaim and enforce martial law. This, unlike
the law previously described, has, of course, no ultimate basis in
municipal law; for neither during nor after the war could anything
done thereunder be made, as between the invader and the subjects
of the territorial power, the subject of an appeal to the civil courts
either of the invading or the invaded State. Hence martial law,
in
this sense, has been described as being “neither more nor less than the
will of the general who commands the army"; the mere presence of
MARTIAL LAW.
435
an invading army amounting to notice that it will be brought into
force. Nevertheless, a commader who enforces martial law ought,
so far as possible, to lay down distinctly the regulations under and
limits within which it will be carried out; whilst all punishments
inflicted thereunder ought to be inflicted only after enquiry and
sentence by a military court. Such regulations must in their details
necessarily depend largely on local conditions and needs, and espe-
cially on whether the territory in question is under actual occupation
or not. But in any case they must not conflict with the laws and
usages of war, as ascertained by custom and convention. Subject to
these conditions, martial law of this kind will apply equally to all
persons found within its range, irrespective of their nationality.
The exercise of such martial authority will come to an end on the
termination of hostilities.
Cobbett, pt. 2, pp. 49–51.
Martial law.–1. Definition. Martial law is the temporary govern-
ment and control by military authority of territory in which, by
reason of war or public disturbance, the civil government is inade-
quate to the preservation of order and the enforcement of law.
G. G. Wilson in 40 Cyc., pp. 387, 388.
Distinguished From Military Law. Martial Law is to be distin-
guished from military law; (1) In that military law applies only
to persons in the land and naval forces, while martial law applies to
all persons and property within the district subject to it; and (2)
in that military law is a permanent condition applicable alike in peace
and war, while martial law is only temporary, and ceases with the
necessity which brought it into existence.
G. G. Wilson in 40 Cyc. p. 389.
How Proclaimed. The authority to proclaim martial law, upon
the invasion of hostile territory, is vested by international law
in the commander of the invading army. The authority to proclaim
martial law within the United States, however, is vested in the legis-
lative departments of the federal and state governments, but may
by them be delegated to executive officers.
G. G. Wilson in 40 Cyc. p. 389.
Where Operative. In accordance with international law, and
under the restrictions contained in the federal and state constitu-
tions, martial law may be legally established only in the territory
of an enemy in time of war, or in those portions of the United States
in which the civil authorities are unable to exercise their proper
functions.
G. G. Wilson in 40 Cyc. pp. 389, 390.
436
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Effect. The proclamation of martial law establishes the will of
the military commander as the rule of authority. His will, however,
is not to be arbitrarily exercised, and it usually supersedes the local
law only so far as necessary for the preservation of order, and, in
case of invasion, the supremacy of the conqueror.
G. G. Wilson in 40 Cyc. p. 390.
Responsibility for Abuse. The commanding officer, or other
person, responsible for abuse of power under the guise of martial
law is liable in a civil action to the party injured, and in a case of
violation of the criminal law is also liable criminally.
G. G. Wilson in 40 Cyc. pp. 390, 391.
Revival of Civil Government. When a territory which has been
under military government of an enemy comes again under the con-
trol of its original government, the authority of this government
revives.
G. G. Wilson in 40 Cyc. p. 391.
Duration. The duration of martial law is determined by the
necessity which led to its establishment, and it therefore ceases as
soon as the civil authorities are able to resume the unobstructed exer-
cise of their ordinary functions.
G. G. Wilson in 40 Cyc. p. 391.
What is martial law? What is meant by the proclamation of
martial law? Who has the power to declare martial law? How
does such a state exist lawfully, and what are the effects of its
existence? All these questions are of great interest, to which, how-
ever, it is not easy to find satisfactory answer.
Sir Matthew Hale observes that “Martial law is not in truth
and reality a law; but sometimes indulged rather than allowed as
a law: the necessity of government, order, and discipline in an army
is that only which gives these laws a countenance." (History
Com. Law, p. 39.) This proposition is a mere composite blunder,
a total misapprehension of the matter. It confounds martial law
and law military; it ascribes to the former the uses of the latter;
it erroneously assumes that the government of a body of troops is
a necessity more than that of a body of civilians or citizens. It
confounds and confuses all the relations of the subject, and is an apt
illustration of the incompleteness of the notions of the common law
jurists of England, in regard to matters not comprehended in that
limited branch of legal science.
Even at a later day, in England, when some glimmerings of light
on the subject had begun to appear, the nature of martial law re-
mained without accurate appreciation in Westminster Hall.
MARTIAL LAW.
437
Thus in the great case of Grant v. Sir Charles Gould, Lord
Loughborough said that “the essence of martial law consists in its
being a jurisdiction over all military persons in all circumstances.”
And because military men are triable for many offences, and have
their personal rights for the most part regulated by the common
law,—“Therefore," he says, “it is totally inaccurate to state martial
law as having any place whatever within the realm of Great
Britain.” (ii H. Blackst., p. 98.)
All that is totally inaccurate.” Military law, it is now perfectly
understood in England, is a branch of the law of the land, applicable
only to certain acts of a particular class of persons, and administered
by special tribunals, but neither in that nor in any other respect.
essentially differing, as to foundation in consitutional reason, from
admiralty, ecclesiastical, or indeed chancery and common law.
It is not the "absence of law” supposed by Sir Matthew Hale;
nor is it under any circumstances the “ martial law” imagined by
Lord Loughborough. It is not the system of rules for the government
of the army and navy established by successive acts of Parliament.
What, then, is martial law?
A recent commentator, Stephen, undertakes to define it as follows:
“Martial law may be defined as the law, whatever it may be, which
is imposed by the military power; and has now no place in the in-
stitutions of this country (England,) unless the articles of war es-
tablished under the acts just mentioned be considered as of that
character." (Commentaries, vol. ii, p. 602, note.) Here, again, is
pitiable confusion; for the articles of war are not a law “imposed by
the military power,” nor is martial law the law of the articles of
war at all, nor is martial law confined in its origin to the military
power as the source of its existence.
In fine, the common law authorities and commentators afford
no clue to what martial law, as understood in England, really is;
but much light is thrown upon the subject by debates in Parliament,
and by facts in the executive action of Government.
*
Martial law, as exercised in any country by the commander of a
foreign army, is an element of the jus belli. It is incidental to the
state of solemn war, and appertains to the law of nations. The com-
mander of the invading, occupying, or conquering army, rules the
invaded, occupied, or conquered foreign country, with supreme
power, limited only by international law, and the orders of the
sovereign or government he serves or represents. For, by the law
of nations, the occupatio bellica in a just war transfers the sovereign
power of the enemy's country to the conqueror. (Wolff's Jus
Gentium, § 863; Kluber, Droit des Gens, § 255; Grotius, De jure
Belli et Pacis, ed. Cocceii, lib. iii, cap. 8.)
438
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Such occupation by right of war, so long as it is military only,
that is, flagranti bello, will be the case put by the Duke of Welling-
ton, of all the powers of government resumed in the hands of the
Commander-in-Chief. If any local authority continue to subsist,
it will be with his permission only, and with power to do nothing,
except what he in his plenary discretion, or his own sovereign
through him, shall see fit to authorize. The law of the land will
have ceased to possess any proper vigor.
Thus, while the armies of the United States occupied different
provinces of the Mexican Republic, the respective commanders were
not limited in authority by any local law. They allowed, or rather
required, the magistrates of the country, municipal or judicial, to
continue to administer the laws of the country among their country-
men,—but in subjection always to the military power, which acted
summarily and according to discretion, when the belligerent inter-
ests of the conqueror required it, and which exercised jurisdiction
either summarily, or by means of military commissions, for the
protection or the punishment of citizens of the United States in
Mexico.
That, it would seem, was one of the forms of martial law; a violent
state of things, to cease, of course, when hostilities should cease, and
military occupation be changed into political occupation. (Elphin-
stone v. Bedruchund, i Knapp's Rep. p. 338; Cross v. Harrison, xvi
Howard, p. 164.)
But these are the examples of martial law administered by a for-
eign army in the enemy's country, and do not enlighten us in regard
to the question of martial law in one's own country, and as admin-
istered by its military commanders. That is a case, which the law of
nations does not reach. Its regulation is of the domestic resort of
the organic laws of the country itself, and regarding which, as it
happens, there is no definite or explicit legislation in the United
States, as there is none in England.
Accordingly, in England, as we have seen, Earl Grey assumes that,
when martial law exists, it has no legal origin, but is a mere fàct of
necessity, to be legalized afterwards by a bill of indemnity, if there
be occasion. I am not prepared to say that, under existing laws,
such may not also be the case in the United States.
Looking into the legislation of other countries, we shall find all the
legal relations of this subject thoroughly explained, so as to furnish
to us ideas at least, if not analogies, by means of which to appreciate
some of its legal relations in the United States.
Thus, in France, the law carefully defines three conditions of
· things applicable, in this relation, to a city or a given district of the
country, namely,—the state of peace,--the state of war,—and the
state of siege.
MARTIAL LAW.
439.
1. The state of peace.—This condition exists at all times, in a city,
or other place, not declared to be in the state of war or in the state
of siege by the supreme political authority, nor placed in either of
those states by circumstances. In the state of peace, all military men
are subject to the law-military, leaving the civil authority untouched
in its own sphere to govern all persons, whether civil or military in
class.
2. The state of war.—This exists in regard to vulnerable points of
the sea-coast threatened from the sea, or in regard to the land fron-
tier and other interior points, occupied or threatened by the camp or
the march of the enemy. This state may lawfully exist either in
virtue of an act of the supreme political authority, or by force of
circumstances. When it exists, the military authority may have to
take precedence of the civil authority, which, nevertheless, is not
deprived of its ordinary attributes, but in order to exercise them
must of necessity enter into concert with the military commander.
3. The state of siege. This may have a lawful origin, like the state
of war, either in an act of the political sovereignty, or in the neces-
sity of circumstances. When it exists, all the local authority passes
to the military commander, who exercises it in his own person, or
delegates it if he please to the civil magistrates to be exercised by
them under his orders. The civil law is suspended for the time being,
or at least made subordinate, and its place is taken by martial law,
under the supreme, if not the direct, administration of the military
power.
The state of siege may exist, in a city or in a district of country,
either by reason of the same being actually besieged or invested by a
hostile force, or by reason of domestic insurrection. In either case, it
is the precise fact with which we are now concerned. The state of
siege of the continental jurists is the proclamation of martial law
of England and the United States,-only we are without law on the
subject, while in other countries it is regulated by known limitations.
(Maurice Block, s. voc. See also Escriche, s. voc. for similar legal
provisions in Spain.)
I
say, we are without law on the subject.
The Constitution, it is true, empowers Congress to declare war;
to raise and support armies; to provide and maintain a navy; to
make rules for the government of the land and naval forces; to pro-
vide for calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions; and to provide for organ-
izing, arming, and disciplining the militia, and for governing such
part of them as may be employed in the service of the United States.
But none of these powers has been exerted in the solution of the
present question.
1
440
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In the amendments of the Constitution, among the provisions of
general right which they contain, are some, the observance of which
seems incompatible with the existence of martial law, or indeed any
other of the supposable, if not necessary, incidents of invasion or in-
surrection. But these provisions are not sufficiently definite to be
of practical application to the subject matter.
In the Constitution, there is one clause, of more apparent relevancy,
namely, the declaration that “ The privilege of the writ of habeas
corpus shall not be suspended, unless when in case of rebellion or
invasion the public safety may require it.” This negation of power
follows the enumeration of the powers of Congress; but it is general
in its terms; it is in the section of things denied, not only to Con-
gress, but to the Federal Government as a government, and to the
States. I think it must be considered as a negation reaching all the
functionaries, legislative or executive, civil or military, supreme or
subordinate, of the Federal Government: that is to say, that there
can be no valid suspension of the writ of habeas corpus under the
jurisdiction of the United States, unless when the public safety may
require it, in cases of rebellion or invasion. And the opinion is ex-
pressed by the commentators on the Constitution, that the right to
suspend the writ of habeas corpus, and also that of judging when the
exigency has arisen, belong exclusively to Congress. (Story's Comm.,
1342; Tucker's Bl., vol. 1, p. 292.)
Opinions of Attorneys General, vol. VIII, pp. 365–372.
A place, district, or country occupied by an enemy stands, in con-
sequence of the occupation, under the Martial Law of the invading
or occupying army, whether any proclamation declaring Martial
Law, or any public warning to the inhabitants, has been issued or
not. Martial Law is the immediate and direct effect and consequence
of occupation or conquest.
The presence of a hostile army proclaims its Martial Law.
Lieber, art. 1.
Martial Law does not cease during the hostile occupation, except
by special proclamation, ordered by the commander in chief; or by
special mention in the treaty of peace concluding the war, when
the occupation of a place or territory continues beyond the conclusion
of peace as one of the conditions of the same.
Lieber, art. 2.
Martial Law in a hostile country consists in the suspension, by the
occupying military authority, of the criminal and civil law, and of
the domestic administration and government in the occupied place or
territory, and in the substitution of military rule and force for the
MARTIAL LAW.
441
same, as well as in the dictation of general laws, as far as military
necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administra-
tion of all civil and penal law shall continue either wholly or in
part, as in times of peace, unless otherwise ordered by the military
authority.
Lieber, art. 3.
Martial Law is simply military authority exercised in accordance
with the laws and usages of war. Military oppression is not Martial
Law; it is the abuse of the power which that law confers. As Martial
Law is executed by military force, it is incumbent upon those who
administer it to be strictly guided by the principles of justice, honor,
and humanity-virtues adorning a soldier even more than other men,
for the very reason that he possesses the power of his arms against
the unarmed.
Lieber, art. 4.
Martial Law should be less stringent in places and countries fully
occupied and fairly conquered. Much greater severity may be exer-
cised in places or regions where actual hostilities exist, or are ex-
pected and must be prepared for. Its most complete sway is
allowed—even in the commander's own country—when face to face
with the enemy, because of the absolute necessities of the case, and of
the paramount duty to defend the country against invasion.
To save the country is paramount to all other considerations.
Lieber, art. 5.
All civil and penal law shall continue to take its usual course in
the enemy's places and territories under Martial Law, unless inter-
rupted or stopped by order of the occupying military power; but all
the functions of the hostile government-legislative, executive, or
administrative—whether of a general, provincial, or local character,
cease under Martial Law, or continue only with the sanction, or, if
deemed necessary, the participation of the occupier, or invader.
Lieber, art. 6.
Martial Law extends to property, and to persons, whether they are
subjects of the enemy or aliens to that government.
Lieber, art. 7.
Consuls, among American and European nations, are not diplo-
matic agents. Nevertheless, their offices and persons will be sub-
jected to Martial Law in cases of urgent necessity only: their prop-
erty and business are not exempted. Any delinquency they commit
110678—19
-29
442
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
against the established military rule may be punished as in the case
of any other inhabitant, and such punishment furnishes no reason-
able ground for international complaint.
Lieber, art. 8.
Martial Law affects chiefly the police and collection of public reve-
nue and taxes, whether imposed by the expelled government or by the
invader, and refers mainly to the support and efficiency of the army,
its safety, and the safety of its operation.
Lieber, art. 10.
Whenever feasible, Martial Law is carried out in cases of individ-
ual offenders by Military Courts; but sentences of death shall be
executed only with the approval of the chief executive, provided the
urgency of the case does not require a speedier execution, and then
only with the approval of the chief commander.
Lieber, art. 12.
Military jurisdiction is of two kinds; First, that which is conferred
and defined by statute; second, that which is derived from the com-
mon law of war. Military offenses under the statute law must be
tried in the manner therein directed; but military offenses which do
not come within the statute must be tried and punished under the
common law of war. The character of the courts which exercise these
jurisdictions depends upon the local laws of each particular country.
In the armies of the United States the first is exercised by courts-
martial, while cases which do not come within the “ Rules and Arti-
cles of War," or the jurisdiction, conferred by statute on courts-mar-
tial, are tried by military commissions.
Lieber, art. 13.
Martial law.—Martial law is simply military authority exercised
in accordance with the laws and usages of war.
U. S. Manual, p. 15.
Extends to property and persons.-Martial law extends to prop-
erty and to all persons in the occupied territory, whether they are
subjects of the enemy or aliens to that government.
U. S. Manual, p. 15.
In the case of ex parte Milligan (4 Wall., 2), Chief Justice Chase,
in a dissenting opinion, which did not affect the merits of the case
under consideration, drew a distinction in military jurisdiction as
follows: “There are under the Constitution three kinds of military
jurisdiction-one to be exercised in both peace and war; another
to be exercised in time of foreign war without the boundaries of the
$
MARTIAL LAW.
443
$
United States, or in time of rebellion or civil war within States or
districts occupied by rebels treated as belligerents; and, third, to
be exercised in time of invasion or insurrection within the limits of
the United States, or during rebellion within the limits of States
maintaining adhesion to the National Government, when the public
danger requires its exercise. The first of these may be called juris-
diction under military law, and is found in acts of Congress pre-
scribing rules and articles of war, or otherwise providing for the
government of the national forces; the second may be distinguished
as military government, superseding, as far as may be deemed ex-
pedient, the local law, and exercised by the military commander un-
der the direction of the President, with the express or implied sanc-
tion of Congress; while the third may be denominated martial law
proper, and is called into action by Congress, or temporarily, when
the action of Congress can not be invited, and in the case of justi-
fying or excusing peril, by the President, in times of insurrection
or invasion, or of civil or foreign war, within districts or localities
where ordinary law no longer adequately secures public safety and
private rights." This distinction has never since been sustained by
the Supreme Court, although military writers have made use of the
term “ military government” to designate the jurisdiction exercised
over enemy territory by the military, regarding enemy territory to
include that of a foreign state and also that part of the belligerent
state that has been accorded recognition of belligerency, and “mar-
tial law” to designate the jurisdiction exercised by the military
power over parts of the dominant state that is in rebellion or in-
surrection without being recognized as belligerents, or, in a word,
treating martial lau" as a domestic fact. (Vide Military govern-
ment and Martial law, Birkhimer, p. 21, 2d ed.)
U. S. Manual, p. 15, note.
The term “martial law” as defined in the text conforms with that
given in Great Britain, where the same distinction is made between
“military law," "martial law,” and “martial law in the home ter-
ritory.” (Vide Law of War on Land, Holland, pp. 14–17; vide also
Jour. Mil. Ser. Inst., Vol. XV, article by Carbaugh.)
U. S. Manual, p. 15, note.
Military jurisdiction.--Military jurisdiction is of two kinds:
First, that which is conferred and defined by statute; second, that
which is derived from the common law of war. Military offenses
under the statute law must be tried in the manner therein directed,
but military offenses which do not come within the statute must be tried
}
444
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
and punished under the common law of war. The character of the
courts which exercise these jurisdictions depends upon the local laws
of each particular country. In the armies of the United States the
first is exercised by courts-martial, while cases which do not some
within the Rules and Articles of War, or the jurisdiction conferred
by statute on courts-martial, are tried by military commissions.
U. S. Manual, pp. 15, 16.
In cases of individual offenders.-Whenever feasible, martial law
is carried out in cases of individual offenders by military courts; but
sentences of death shall be executed only with the approval of the
Chief Executive, provided the urgency of the case does not require
a speedier execution, and then only with the approval of the com-,
mander of the occupying forces.
U. S. Manual, p .16.
Cruelty, bad faith, extortion, revenge, etc., prohibited.—The law
of war not only disclaims all cruelty and bad faith concerning en-
gagements concluded with the enemy during the war, but also the
breaking of treaty obligations entered into by belligerents in time
of peace and avowedly intended to remain in force in case of war be-
tween the contracting powers. It disclaims all extortion and other
transactions for individual gain; all acts of private revenge, or con-
nivance at such acts. Offenses to the contrary shall be severely pun-
ished, and especially so if committed by officers.
U. S. Manual, p. 16.
Vide Justification of Martial Law, by G. Norman Lieber, p. 3, who
says:
“ Military jurisdiction is of four kinds, viz:
“1. Military law, which is the legal system that regulates the
government of the military establishment. Military law is a branch
of municipal law, and in the United States derives its existence from
special constitutional grants.
“2. The law of hostile occupation, or military government, as it
is sometimes called; that is, military power exercised by a belliger-
ent over the inhabitants and property of an enemy's territory, oc-
cupied by him. This belongs to the law of war, and, therefore, to
the law of nations.
« 3. Martial law applied to the army; that is, military power ex-
tended in time of war, insurrection, or rebellion over persons in the
military service, as to obligations arising out of such emergency, and
not falling within the domain of military law, nor otherwise regu-
lated by law. It is an application of the doctrine of necessity,
founded on the right of national self-preservation.
!
MARTIAL LAW.
445
“4. Martial law at home, or as a domestic fact; by which is meant
military power exercised in time of war, insurrection, or rebellion, in
parts of the country retaining allegiance, and over persons and
things not ordinarily subjected to it."
U. S. Manual, p. 16, note.
1
To Martial law are subject in particular:
1. All attacks, violations, homicides, and robberies, by soldiers
belonging to the army of occupation.
2. All attacks on the equipment of this army, its supplies, ammu-
nition, and the like.
3. Every destruction of communication, such as bridges, canals,
roads, railways and telegraphs.
4. War rebellion and war treason.
Only the fourth point requires explanation.
By war rebellion is to be understood the taking up of arms by
the inhabitants against the occupation; by war treason on the other
hand the injury or imperiling of the enemy's authority through de-
ceit or through communication of news to one's own army as to the
disposition, movement, and intention, etc., of the army in occupation,
whether the person concerned has come into possession of his in-
formation by lawful or unlawful means (i. e., by espionage).
Against both of these only the most ruthless measures are ef-
fective. Napoleon wrote to his brother Joseph, when, after the latter
ascended the throne of Naples, the inhabitants of lower Italy made
various attempts at revolt: “ The security of your dominion depends
on how you behave in the conquered province. Burn down a dozen
places which are not willing to submit themselves. Of course, not
until you have first looted them; my soldiers must not be allowed to
go away with their hands empty. Have three to six persons hanged
in every village which has joined the revolt; pay no respect to the
cassock. Simply bear in mind how I dealt with them in Piacenza
and Corsica.” The Duke of Wellington, in 1814, threatened the
South of France; "he will, if leaders of factions are supported, burn
the villages and have their inhabitants hanged.". In the year 1815,
he issued the following proclamation: “All those who after the en-
try of the (English) army into France leave their dwellings and all
those who are found in the service of the usurper will be regarded
as adherents of his and as enemies; their property will be used for
the maintenance of the army.” “These are the expressions in the
one case of one of the great masters of war and of the dominion
founded upon war power, and in the other, of a commander-in-chief
who elsewhere had carried the protection of private property in
hostile lands to the extremest possible limit. Both men as soon as
a popular rising takes place resort to terrorism.”
446
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A particular kind of war treason, which must be briefly gone into
here, inasmuch as the views of the jurists about it differ very strongly
from the usages of war, is the case of deception in leading the way,
perpetrated in the form of deliberate guiding of the enemy's troops
by an inhabitant on a false or disadvantageous road. If he has of-
fered his services, then the fact of his treason is quite clear, but also
in case he was forced to act as guide his offense cannot be judged
differently, for he owed obedience to the power in occupation, he
durst in no case perpetrate an act of open resistance and positive
harm but should have, if the worst came to the worst, limited him-
self to passive disobedience, and he must therefore bear the conse-
quence.
However intelligible the inclination to treat and to judge an of-
fense of this kind from a milder standpoint may appear, none the
less the leader of the troops thus harmed cannot do otherwise than
punish the offender with death, since only by harsh measures of de-
fense and intimidation can the repetition of such offenses be pre-
vented. In this case a court-martial must «precede the infiction of
the penalty. The court-martial must however be on its guard against
imputing hastily a treasonable intent to the guide. The punishment.
of misdirection requires in every case proof of evil intention.
German War Book, pp. 157–160.
In the present section the distinction between martial law and
military law should be carefully borne in mind. Military law signi-
fies, primarily, the law for the government of military forces. Thus
it has been held that persons in the military and naval service of the
United States are at all times subject to trial by court-martial under
military law.
Moore's Digest, vol. II, p. 185.
(
The term martial law refers to the exceptional measures adopted,
whether by the military or the civil authorities, in times of war or of
domestic disturbance, for the preservation of order and the main-
tenance of the public authority. To the operation of martial law
all the inhabitants of the country or of the disturbed district, aliens
as well as citizens, are subject. In this relation, however, it is im-
portant to remember that the essentials and limitations of the con-
dition of things which we describe as martial law are not precisely
defined in the common law, and that the condition so denominated
is known by different names under other systems of law, in which its
essentials and limitations are more or less particularly defined.
Thus, in France we have (1), from the point of view of the de-
fence of the country, the state of peace (l'état de paix), the state of
MARTIAL LAW.
447
war (l'état de guerre), and the state of siege (l'état de siège), in
fortified places and military posts; and (2), from the point of view
of the maintenance of order and of the public peace, the state of
siege (l'etat de siège) in parts of the territory where that excep-
tional measure may become necessary. The state of siege may be
established by a decree or by matters of fact, such as a forcible
attack, a surprise, or domestic sedition.
In Spain we have not only the state of siege, but under the Law
of Public Order of April 23, 1870, which is declared not to embrace
cases of foreign war, nor of civil war formally declared,” we have
what is known as a “ state of war" (estado de guerra), which may
be declared even by local magistrates in case of rebellion or sedition.
The question as to what constitutes martial law under the com-
mon law is discussed by Sir Frederick Pollock in the London Times
of March 10, 1902. Being unable, as he states, “ to agree completely
with any of the explanations hitherto offered on this obscure subject,”
he reaches certain conclusions which seem to him, in the dearth of
positive authority, to be “ fairly probable.” In the first place, he
thinks it is undisputed that the martial law” of the earlier books,
down to the end of the seventeenth centruy if not later, is what we
now call military law, the rules for the government of armies in the
field and other persons within their lines or included in the region
of their active operations. Any such rules, so far as applicable to
persons not British subjects, whether friends or enemies, “ought of
course to be consistent with the law of nations and with the recog-
nized usages of war.” In the second place, he concludes that military
law, as a special body of rules applicable to special classes of persons,
has nothing to do with the general right of citizens to defend their
own persons and property, or the right—which is also a duty—to
preserve the peace against rioters, by the use of whatever force is
reasonably necessary. As to this power or duty, assuming it to exist,
it is, he says, to be observed (1) that it is not a matter of prerogative,
but appertains to all lawful men; (2) that it is not specially vested
in military officers, though they may often be the most proper persons
to exercise it, and (3) that its exercise requires to be justified by the
necessity of the case, which is a question, after the restoration of
peace, for the ordinary courts of justice, the burden of proof being
according to the common law on the person justifying. Of this ques-
tion an executive proclamation of martial law would not be legally
decisive, unless it was authorized by legislation. Other practical
questions suggest themselves. First, what is a state of war? Must
there be, then and there, actual' fighting or disorder? Must life and
property be in imminent danger? Must the enemy be visible in
force, or the sound of his guns audible? Second, are the kinds of
448
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
acts which may be necessary for public defence limited to the use of
physical force against persons, by way of restraint or summary
punishment? If not, what other kinds of acts may be required and
justified? There was, says Sir Frederick Pollock, a prevalent opin-
ion in the seventeenth century that it was time of peace when and
where the courts were open and the King's writ. could be executed.
There was also some authority to show that not only acts done against
enemies or disaffected persons, but invasions of innocent person's
property, might be justified by the necessity of war. Applying these
principles, it may, says Sir Frederick, be supposed that an enemy's
army has landed in force in the north of England and is marching
on York. The peace is kept in London and Bristol, and the courts
are not closed. But it is known that evil-disposed persons have
agreed to land at several ports for the purpose of joining the enemy
and giving him aid and information. Bristol is one of the sus-
pected ports. What shall the mayor of Bristol do? Sir Frederick
Pollock submits that it is the mayor's plain moral duty as a good
citizen (putting aside for a moment the question of strict law) to
prevent suspected persons from landing, or to arrest and detain them
if found on shore, to assume control of the railway traffic and forbid
undesirable passengers to proceed northward, and to exercise a strict
censorship and inquisitorial power over letters and telegrams. All
these things are in themselves trespasses (except, probably, forbid-
ding an alien to land); some of them may perhaps be justifiable under
the statutory powers of the postmaster-general, but summary restraint
by way of prevention must be justified by a common law power
arising from necessity, if at all. “ Observe," continues Sir Frederick,
“that I say nothing about trial or punishment. The popular (and
sometimes official) notion that martial law necessarily means trial by
court-martial has caused much confusion. Summary punishment
may or may not be necessary. In that respect the mayor's authority
would be like that of the master of a ship.” At one time, he adds, it
was a favored doctrine that extraordinary but necessary acts in time
of war or rebellion, outside military law proper, were all in the first
instance illegal, and that it might be a political duty to commit un-
lawful acts and rely on the legislature's grace for a subsequent indem-
nity. Sir Frederick Pollock maintains that this “imputes gratui-
tous folly to the common law, which can not be so perverse as to
require a man in an office of trust to choose between breaking the law
and being an incompetent officer and a bad citizen.” In the absence
of authority to the contrary, the law is to be presumed to be reason-
able; and it seems that the range of acts which may be (in the words
of Justice Kingsmill) “justifiable and lawful for the maintenance of
the Commonwealth," must extend to the prevention of aid and
MARTIAL LAW.
449
66
comfort to the enemy beyond the bounds of places where warlike
operations are in sight. Modern means of communication, Sir Fred-
erick observes, have greatly extended the effective radius of a state
of war. The conclusions, which he reaches, are (1) that "martial
law," as distinguished from military law, is “an unlucky name for
the justification by the common law of acts done by necessity for the
defence of the Commonwealth when there is war within the realm;">
(2) that justification of any particular act is ultimately examinable
in the ordinary courts, the question whether there was a state of war
at a given time and place being a question of fact; (3) that there
may be a state of war at any place where aid and comfort can be
effectually given to the enemy, having regard to the modern condi-
tions of warfare and means of communication." These conclusions, ,
he observes, do not make acts of indemnity superfluous, but render
them measures of prudence and grace, whose office is not to justify
unlawful acts ex post facto, but to quiet doubts, prevent vexatious
and fruitless litigation, and quite possibly provide compensation for
innocent persons in respect of damage inevitably caused by justi-
fiable acts. In conclusion, Sir Frederick Pollock expresses the opin-
ion that the only point really decided by the judicial committee of
the privy council in refusing the petition of D. F. Marais is that the
absence of visible disorder and the continued sitting of the courts
are not conclusive evidence of a state of peace. The judgment in-
volved the further position that neither an application for summary
release from extraordinary arrest, nor an action for anything done
as an extraordinary act of necessity, would be entertained by the
ordinary courts during the continuance of a state of war in the
jurisdiction, when the court was satisfied that a responsible officer
acting in good faith was prepared to justify the act complained of.
Sir Frederick expresses regret that the adjective “military” is used
several times in the judgment, since it is likely “ to keep alive the
fallacious notion that the so-called 'martial law' justified by neces-
sity is identical or logically connected with military law."
An article in the Edinburgh Review for January, 1902, refers
to the proclamation of martial law at the Cape during the Boer war,
first in particular districts, but later throughout the colony, and also
to the rejection by the judicial committee of the privy council of
the petition of Mr. Marais for special leave to appeal against the
decision of the supreme court of the Cape of Good Hope, refusing his
application for release from custody. The article states that since
1689 there had been no instance of the proclamation of martial law
in Great Britain; that the last act authorizing it in Ireland was the
act of 3 and 4 William IV. c. 4, which expired August 1, 1834; and
450
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
that there had been no instance of it in any British colony since
1865, a date coinciding with the termination of the American civil
war and the last application of martial law in United States terri-
tory.
Moore's Digest, vol. II, pp. 186–189; Edinburgh Review, January,
1902, 79.
The Statement as to the United States appears to be erroneous, since there.
have been several cases of the local application of martial law in United States
territory since 1865.
“As to the remark which had been made about him (the Duke of
Wellington), he would say a word in explanation. He contended
that martial law was neither more nor less than the will of the gen-
eral who commands the army. In fact, martial law meant no law at
all. Therefore the general who declared martial law, and com-
manded that it should be carried into execution, was bound to lay
down distinctly the rules and regulations and limits according to
which his will was to be carried out. Now he had, in another coun-
try, carried on martial law; that was to say, that he had governed
a large proportion of the population of a country by his own will.
But then, what did he do? He declared that the country should be
governed according to its own national laws, and he carried into
execution that will. He governed the country strictly by the laws
of the country; and he governed it with such moderation, he must
say, that political servants and judges who at first had fled or had
been expelled, afterwards consented to act under his direction. The
judges sat in the courts of law, conducting their judicial business
and administering the law under his direction."
Moore's Digest, Vol. II, pp. 189–190; Speech of the Duke of Wellington,
Debate on Affairs in Ceylon, House of Lords, April 1, 1851, Hansard,
3d series, CXV. 880.
Early in the civil war in the United States General Scott was
authorized by the President to suspend the writ of habeas corpus at
any point on the military line between Philadelphia and Washing-
ton. In the case of Merryman an attempt was made to test this order
judicially. Chief Justice Taney, before whom the case was brought,
granted the application for the writ, but his decision was disre-
garded by the military authorities. Attorney-General Bates sus-
tained the President's action in an elaborate opinion, on the ground
that, under his obligation to execute the laws, he must be accorded
the widest discretion as to means. The question as to the extent of
the Government's authority over individuals in States not in insur-
rection was complicated by the controversy over the proper depart-
ment for exercising such authority. September 24, 1862, the Presi-
MARTIAL LAW.
451
66
dent issued a proclamation, by which it was ordered that all persons
discouraging voluntary enlistments, resisting military drafts, or
guilty of any disloyal practice affording aid and comfort to the
rebels" should be subject to martial law, and liable to trial by
courts-martial or military commissions, and that the writ of habeas
corpus should be suspended in respect to all persons arrested or held
by military authority. By the act of March 3, 1863, Congress author-
ized the President, during the rebellion, to suspend the privilege of
the writ “in any case throughout the United States, or any part
thereof." In pursuance of this authority, the President, September
15, 1863, proclaimed a general suspension of the privilege. The act
of 1863, however, provided for the trial of all military prisoners by
civil authority. Nevertheless, the application of martial law con-
tinued in the Northern States; and the efforts to secure a judgment
upon the validity of the extraordinary tribunals proved ineffectual
till after the war had ended. Then, in 1866, in the case of Milligan,
the Supreme Court held that the suspension of the privilege of the
writ of habeas corpus did not itself establish martial law, but that
the test of the existence of martial law was to be found in the con-
dition of the courts. In this relation the court said: “ Martial law
can not arise from a threatened invasion. The necessity must be
actual and present; the invasion real, such as effectually closes the
courts and deposes the civil administration.
Martial rule
can never exist where the courts are open and in the proper and unob-
structed exercise of their jurisdiction."
Moore's Digest, vol. II, pp. 190–191; Dunning, Essays on the Civil War
and Reconstruction, 19, 20, 37, 38, 42, 43, 45–47.
See Ex parte Milligan, 4 Wall. 2; Com. 1. Shortall (1903), 206 Pa. 165.
Without regard to the circumstance that the practice of the Government
during the civil war was at variance with the rule afterwards laid down in
Milligan's case, it is to be observed that the decision of the court constitutes
simply a declaration of constitutional law in the United States, and is not to
be regarded as prescribing the conditions under which, from the international
point of view, martial law may be enforced in other countries.
The right to suspend the writ of habeas corpus is one of municipal
law to be declared to foreign governments by the President through
the Department of State; and it is not competent for foreign govern-
ments to question the accuracy of such declarations.
Moore's Digest, vol. II, p. 191 ; Mr. Seward, Sec. of State, to Lord
Lyons, Brit. min. Oct. 14, 1861, MS. Notes to Gr. Brit. IX. 16. See
2 Halleck, Int. Law (3d ed. by Baker), I. 548.
The following report of a debate in the British House of Lords is
given in the Diplomatic Correspondence of 1862, published by the
Government of the United States, as appended to the President's
452
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
message. After inquiries by the Earl of Carnarvon, Earl Russell
said:
“I conclude that the noble earl has hardly read the papers which
have been laid upon the table of the house by command of Her
Majesty; for the noble earl would there have found a correspondence
betireen Lord Lyons and Mr. Seward, and also between Her Majesty's
Government and Lord Lyons on this subject. The noble earl, in his
statement, seems hardly to have taken into account the very critical
circumstances in which the Government of the United States has
been placed. In the spring of last year nine of the States in the
scheme of confederation declared war against the Government of the
United States. In such circumstances as these it is usual for all gov-
ernments to imprison upon suspicion persons who they consider are
taking part in the war against them. In a case which happened not
many years ago, viz. 1848, when there was a conspiracy for the pur-
pose of overturning the authority of Her Majesty, the secretary of
state applied to the other house of Parliament for authority to ar-
l'est persons on suspicion, viz, for the suspension of the habeas corpus
act, and in the papers presented to Parliament at that date there
are two cases in which the lord lieutenant of Ireland had ordered the
arrest of two American persons; a complaint was thereupon made
by the American Government, and my noble friend (Lord Palmer-
ston), at that time at the head of the foreign office, replied that with
regard to those persons the lord lieutenant had due information, upon
which he relied, that those persons were engaged in practices tend-
ing to subvert the authority of the Crown, and were aiding practices
which were being pursued in that part of the Kingdom. Those per-
sons were never brought to trial, but on that authority they were ar-
rested. After this civil war broke out in America complaints were
made by certain British subjects that they had been arrested upon
suspicion. I immediately directed Lord Lyons to complain of that
act as an act enforced by the sole authority of the President of the
United States, and especially in regard to one of those persons there
seemed very light grounds for suspicion, and I said he ought not to be
cletained. I am not here to vindicate the acts of the American Gov-
ernment for one or for any of those cases. Whether they had good
grounds for suspicion, or whether they had light grounds for sus-
picion, it is not for me here to say. If I thought there were light
grounds for suspicion, it was my business to represent that to the
Government of the United States, but it is not my business to under-
take their defense in this house. The American minister replied
that the President had, by the Constitution, the right, in time of war
or rebellion, to arrest persons upon suspicion, and to confine them in
prison during his will and pleasure. This question has been much de-
bated in America, and judges of high authority have declared that
MARTIAL LAW.
453.
the writ of habeas corpus could not be suspended except by an act
of Congress. But certain lawyers have written on both sides of the
question; and I have recently received a pamphlet in which it
is laid down that the meaning of the law of the United States
is that the writ of habeas corpus can be suspended on the sole au-
thority of the President of the United States. The question itself
was brought before Congress, and a resolution was proposed that
there should be no arbitrary arrests except with the sanction of Con-
gress. But it was contended that it was part of the prerogative of
the President; and a large majority decided that the question should
not be discussed, and thereby left the President to act for himself.
So much for the power given by the Constitution of the United
States. With regard to the particular acts which the Secretary of
State, under the sanction of the President, has authorized as to the
arrest of British subjects, as well as American subjects, I am not here
to defend those arrests, but I certainly do contend that it is an
authority which must belong to some person in the Government, if
they believe that persons are engaged in treasonable conspiracies, in
the taking part as spies, or in furnishing arms against the Govern-
ment. I believe that in regard to many of the cases of arbitrary
authority that power was abused. I believe that, not only with
regard to persons arrested, but in the course pursued, there was un-
necessary suspicion, but I do not find that in any case there has been
any refusal to allow British consuls at places where convenient to
hear the cases of those persons, or when a statement was made by the
British minister that Lord Lyons was slow in representing the case
to Mr. Seward. Lord Lyons represented to me that these cases took
up a very great part of his time, and he was anxious to investigate
every one of them. Nor can I say that Mr. Seward has refused at
any time to listen to those complaints. He has always stated that
he had information upon which he could depend that these persons
were engaged in treasonable practices against the Government of
the United States. That being the question, the noble earl states,
upon his own authority, that the arrests are illegal, and that the
persons are kept in prison illegally. But that is more than I can ven-
ture to say. I can hardly venture to say that the President of the
United States has not the power, supposing persons are engaged in
treasonable conspiracies against the authority of the Government, to
keep them in prison without bringing them to trial, and it would
require a strong denial of the authority of the law officers of the
United States before I could presume to say that the President of
the United States had not that power. With regard to the particular
cases which the noble earl has referred to, I am unable to say whether
or not some of those persons may not have been engaged in these
conspiracies. We all know that during the time in which the United
454
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
.
States have been divided there has been much sympathy shown in
this country on one side and on the other--some have shown a strong
sympathy for the North, and some for the South. (Hear, hear.)
With regard to some of those cases, I have stated I thought the cir-
cumstances were such that it was quite evident that they, had not
been engaged in any conspiracy. There was one gentleman who hap-
pened to be a partner in a firm, and the other partners had great con-
nections with the South. It was true that the firm had strong South-
ern sympathies, but the gentleman himself was a firm supporter of
the Government of the Union. It was the mere circumstance of let-
ters being sent to his partner which induced his arrest. I thought
that a most arbitrary and unjust proceeding. (Hear.) Mr. Seward
said he thought the circumstances were enough to induce suspicion,
but that as soon as it was ascertained that there was no ground for
that suspicion, that gentleman was released. An innocent person be-
ing arrested and confined for several days in prison was undoubtedly
a great grievance, and one for which he was entitled to compensa-
tion; but beyond the right to complain, and beyond the constant re-
monstrances of Lord Lyons, the British minister, in every such case,
I do not hold that the circumstances warrant further interference.
I believe the gentleman to whom I allude had stated that he expected
his own friends would procure his release. The noble lord mentioned
three cases. I was not aware of the cases the noble earl would men-
tion. But with regard to Mr. Green, this is the statement he made
on the 5th of September: 'I desire no action to be taken by my
friends in England in consequence of my arrest. Lord Lyons has
represented my case, and it will receive investigation in due time.
Meanwhile I am in the hands of the officers of this fort.' There have
been other cases of arrest and imprisonment under circumstances
involving considerable hardship. There have been many cases of
arbitrary imprisonment without trial; and these cases of arbitrary
imprisonment have taken place under a Government which is en-
gaged in a civil war, perhaps one of the most serious and formid-
able in which any country was ever engaged. Right or wrong, it
is not for us to decide; but we must admit that all the means that
have been used by civilized nations in warfare against each other
are open to the Americans in this case. With respect to the par-
ticular cases, I believe that to whatever cause it may be owing,
whether owing to the novelty of the case in North America, or to the
inexperience of persons who are not conversant with the carrying
out of affairs, or whether it is this, that arbitrary power can never
be safely intrusted to anyone without being abused, to whatever cause
it is owing, I believe there will ever be many cases of abuse of such
power. (Hear, hear.) But in every case where a British subject is
arrested, and a reasonable case is made out for him, I shall be ready
MARTIAL LAW.
455
to instruct Lord Lyons to bring the case under the consideration of
the Government of the United States. Lord Lyons has never been
wanting in his duty. (Hear, hear.) He has, I think, shown him-
self a vigilant British minister in that respect; and I trust your
lordships will not think that these cases have been neglected by the
Government of this country. (Hear.)”
The Earl of Derby. “The statement made by my noble friend be-
hind me, and borne out by the noble earl opposite, is one which can-
not be listened to without feelings excited in the highest degree in
consequence of the treatment to which British subjects have been sub-
jected. I am willing to admit, with the noble earl, that every allow-
ance should be made for the circumstances and the difficulties in
which the Government of the United States is placed, and the posi-
tion in which they stand with regard to the civil war in which they
are engaged. But I must say that the course they have pursued
with respect to British subjects in America, notwithstanding the
remonstrances which have been, from time to time, presented to them
by Lord Lyons in the performance of his duty, which he appears to
have pursued with great prudence, is most trying to the patience of
this nation. I think he was justified in using strong language with
regard to the course which has been pursued. That course was any-
thing but in accordance with the Civis Romanus sum' doctrine of the
noble lord at the head of the Government. (Laughter.) The noble
earl opposite has apparently derived some advantage and instruction
from the correspondence in which he was engaged with Mr. Seward,
because in an early stage of those proceedings he very properly in-
voked against those proceedings the protection of the American law.
He said that that which the law sanctions with regard to American
subjects we could not complain of when applied to British subjects;
but the question is this: does the law sanction it? The answer was,
that the Government did not consider themselves bound to take their
view of American law from a British minister. Such was the sub-
stance of the courteous reply received by the noble earl. (Hear,
hear.) There is one question which I must ask the noble earl to
answer. It has already been asked by my noble friend behind me, but
very conveniently the noble earl has not thought it necessary to reply
to it. He states that the Congress has passed a resolution affirming
the power of the President, under the Constitution, to suspend the
habeas corpus.
Earl Russell. “With respect to the first point, what I stated, so far
as I recollect, was this: That on a motion to the Congress with regard
to the suspension of the habeas corpus by the President, the Con-
gress, by passing to the order of the day, or laying the proposition
on the table, or whatever their form is, voted by a small majority in
456
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
favor of the proposition. I do not think we should complain if the
President exercises that power, and the Congress does not interfere
with it."
Moore's Digest, vol. II, pp. 191–194.' (Dip. Cor. 1862, 28–31.)
“In September, 1862, the British chargé d'affaires at Washington
requested the discharge of one Francis Carroll, a British subject, who
had been arrested by the military authorities in Baltimore. Mr.
Seward refused the request, and in a note to Mr. Stuart said:
6. Is the Government of the United States to be expected to put.
down treason in arms and yet leave persons at liberty who are capable
of spreading sedition ? ... Certainly the Government could not
expect to maintain itself if it allowed such mischievous license to
American citizens. Can the case be different when the dangerous
person is a foreigner living under the protection of this Government?
I can conceive only one ground upon which his release can be ordered,
and that is that he may be too unimportant and too passionate a per-
son to be heeded in his railings against the Government. But you
will bear in mind that the times are critical, and that sedition is
easily moved now by evil-designing men who in times of peace might
be despised. (Diplomatic Correspondence for 1862, p. 288.)
“A correspondence ensued, which resulted in a proposal that,
“Mr. Carroll should be released from custody upon his agreeing
to leave the United States immediately, and not return again during
the continuance of this rebellion, and giving security to the approval
of the United States marshal that he will keep said agreement.”
(Diplomatic Correspondence for 1863, I. 406.)
“This offer was accepted by the British chargé d'affaires and Mr.
Carroll was discharged.
“ The President cannot assume that an exercise of national sover-
eignty which was performed by the United States when their se-
curity was assailed cannot be performed by other powers similarly
situated, subject, of course, always to be questioned when the good
faith of its exercise may be drawn in doubt.
“ But in the exercise of such an extreme right of sovereignty the
comity of nations demands that the power exercising it should hold
itself ready at all times to explain to the power on whose citizens it
has been exercised the reasons which have compelled it. It cannot
be doubted that Her Majesty's Government will observe the same
spirit of courtesy in this respect that the Government of the United
States displayed when the case was reversed."
Moore's Digest, vol. II, pp. 194, 195; Mr. Frelinghuysen, Sec. of State, to:
Mr. Lowell, min. to England, April 25, 1882, For. Rel. 1882, 231-232.
*
MARTIAL LAW.
457
Though all persons within the territory where martial law pre-
vails are subject to its operation, claims for damages have not been
infrequently allowed where its application was irregular, arbitrary,
or unnecessarily harsh. One hundred claims for damages for arrest.
and imprisonment, chiefly or wholly under martial law, were sub-
mitted to the claims commission under Article XIII. of the treaty
between the United States and Great Britain of May 8, 1871. The
total damages claimed in these cases amounted to nearly $10,000,000,
or, with interest to about $16,000,000. In 34 cases awards were made
in favor of the claimants against the United States, amounting in all
to $167,911. In 64 cases the claims were disallowed, while one was
dismissed without prejudice for improper language in the memorial,
and another was withdrawn by the agent of the British Government.
Moore's Digest, vol. II, p. 195; Moore, Int. Arbitrations, IV, 3278–3311;
Hale's Report, 61-87; Howard's Report, 69, 73, 550, 560, 563, 569,
571.
Various claims for imprisonment under martial law during the
civil war in the United States were dealt with by the commissioners
under the treaty between the United States and France of January
16, 1880. The subject was extensively discussed in the case of Du-
bos, who was imprisoned by General Butler at New Orleans. The
commissioners unanimously concurred in the proposition that Gen-
eral Butler had authority to declare martial law in New Orleans, and
that aliens as well as other inhabitants of the city were bound to
obey the regulations established by him. A majority of the com-
mission, however, made an award in favor of the claimant, on the
ground that General Butler had dealt with him in violation of the
terms of his own proclamation of martial law and also in violation
of the rules and articles of war.
Moore's Digest, vol. II, pp. 195, 196; Moore, Int. Arbitrations, IV,
3320-3322.
See also, the cases of Le More, Heidsieck, and Bebian: Moore, Int. Arbitra-
tions, IV, 3311-3319.
The claims in the cases of Heidsieck and Bebian were disallowed.
In the case of Alfred Le More, it appeared that the claimant was confined
by order of General Butler at Fort Pickens from the 15th to the 26th of
November, 1862, and was forced to wear a 32-pound cannon ball and 6 feet of
iron chain. From November 28 to December 30 he was confined in the New
Orleans customhouse. A majority of the commission declared that the case
of unusual and arbitrary conduct on the part of the general com-
manding at New Orleans;" that he had “no right to inflict punishment on the
claimant, but only to detain him in custody for trial;" and that the “punish-
ment of solitary imprisonment at hard labor with ball and chain was un-
necessary, extreme, and much too severe." An award was made of $10,000.
(Moore, Int. Arbitrations, IV, 3311-3313.)
In this case the President of the United States expressed disapproval of
General Butler's action in directing Mr. Le More "to be employed at labor,
was one
110678—19-30
458
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
and to wear a ball and chain," and " directed that the prisoner be immediately
released from these inflictions.” Information to this effect was communicated
to the French minister, together with an expression of regret and an assurance
that care would be taken to prevent the recurrence of such excess of rigor
under any military command in the United States. (Mr. Seward, Sec. of
State, to Mr. Mercier, French min., Dec. 10, 1862, MS. Notes to French Lega-
tion, VII, 160.)
“In all civilized countries, during times of great political dis-
turbances and revolutionary movements, the right to arrest suspected
persons, and to hold them in restraint a reasonable time, for the
purpose of investigating the charges which may be made against
then, has been exercised as one necessary for self-preserva-
tion. During our late civil war this right was exercised in large de-
gree by the United States Government. The utmost care, however,
has been, and will be taken to see that this right is not exercised
with undue harshness or injustice towards citizens of the United
States, and in all proper cases such reparation as may be justly due
them for unlawful arrest and detention will be demanded through
the proper channels.”
Moore's Digest, vol. II, p. 196; Mr. Fish, Sec. of State, to Mr. Banks,
chairman of the Committee on Foreign Affairs, House of Repre-
sentatives, March 31, 1869, 52 Dispatches to Consuls, 522.
“The President's proclamation of October 7, 1878, in relation to
unlawful assemblages and combinations of persons in arms then
represented to exist in Lincoln County, Territory of New Mexico,
was the proclamation of preliminary warning contemplated by sec-
tion 5300, Title LXIX, Revised Statutes, and could not properly
be considered a proclamation “declaring martial law.” It did not
suspend or authorize the suspension of the writ of habeas corpus,
but required “all persons engaged in or connected with the said
obstruction of the laws” to “ disperse and retire peacefully to their
respective abodes.">
Moore's Digest, vol. II, pp. 196-197 ; Mr. Evarts, Sec. of State, to Mr.
Ramsey, Sec. of War, Feb. 3, 1880, 131 MS. Dom. Let. 469.
Article I of the protocol between Spain and the United States,
January 12, 1877, provided :
That “no citizen of the United States residing in Spain, her ad-
jacent islands, or her ultramarine possessions, charged with acts of
sedition, treason or conspiracy against the institutions, the public se-
curity, the integrity of the territory or against the Supreme Gov-
ernment, or any other crime whatsoever, shall be subject to trial by
any exceptional tribunal, but exclusively by the ordinary jurisdic-
tion, except in the case of being captured with arms in hand.”
MARTIAL LAW.
459
On the strength of the negotiations leading up to this protocol,
and of the interpretation placed upon it by the mixed commission
under the agreement of 1871, it was maintained that the foregoing
article, in connection with article 7 of the treaty of 1795, prohib-
ited the arrest of a citizen of the United States in Cuba by execu-
tive authority, and his detention without trial, as a dangerous person,
under the professed authority of a state of siege.
Moore's Digest, vol. II, p. 197; case of Francisco Carillo, For. Rel. 1895,
II, 1220.
As to the protocol of Jan. 12, 1877, see Mr. Fish, Sec. of State, to Mr.
Cushing, Min. to Spain, Dec. 27, 1875; April 17, June 9, July 21, Nov. 28, Dec.
12, 1876 ; MS. Inst. Spain, XVII, 396, 506, 546, 564; XVIII, 33, 60; and telegrams,
same to same, Jan. 4, 15, 18, 23, 25, and March 3, 1877, MS. Inst. Spain, XVIII,
70, 77, 82, 83, 85, 125.
See the case of De Luna, Moore, Int. Arbitrations, IV, 3276.
“The contention of the United States always has been that
martial law or a state of siege proclaimed in Cuba, does not affect the
rights of American citizens under the treaties and the protocol, and
that they consequently can not be kept incommunicado beyond the
period of seventy-two hours, the limit fixed by Art. IV of the Span-
ish constitution of 1876."
Moore's Digest, vol. II, p. 197; Mr. Rockhill, Assist. Sec. of State, to
Mr. Lee, cons. gen. at Havana, March 11, 1897, 155, MS. Inst. Con-
suls, 438.
On the discovery of the plot to overthrow the Republic in Hawaii,
in January, 1895, and during the commotion attendant upon the sup-
pression of the attempted rising, martial law was declared, and a
military commission of seven persons, presided over by the attorney-
general, was constituted to try persons charged with complicity in
the conspiracy. Numerous arrests were made, and up to the middle
of February about a hundred persons were tried. Among those who
were arrested were certain persons who claimed to be citizens of
the United States and a few who asserted British allegiance.
January 28, 1895, Mr. Willis, the minister of the United States at
Honolulu, requested copies of the record in the cases of United States
. citizens who had been tried or who were to be tried, in order that his
Government might before final sentence “ determine its duty in the
premises.” The Hawaiian minister of foreign affairs, Mr. Hatch,
promised to furnish copies of the record when it should be “com-
pleted” and “ acted upon by the President;” but he asked Mr. Willis
upon what principle of international law or usage” he desired his
Government to have “the opportunity to consider the question of
law and facts involved, and to determine its duty in the premises
before final sentence is pronounced ;” and he denied that “any right
66
460
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of review” belonged to the United States, and refused to give an as-
surance that final sentence would be delayed till that Government had
“ determined its duty in the premises."
Mr. Willis disclaimed any intimation of “a right to review” the
decisions of the Hawaiian Government, and stated that he had
merely made“ the usual request from one government to another for
correct official information in matters involving the life, liberty, and
property of the citizen.” He added :
The principles of international law and usage of which you make
inquiry, as understood by Hon. W. H. Seward, former United States
Secretary of State, are set forth in an official letter of October 27,
1866, addressed to Sir Frederick Bruce, then British minister at
Washington, referring to the cases of Robert B. Lynch and John
McMahon who had been tried before the regular.tribunals of justice
as actors in the assault at Fort Erie, Canada, the question of final
sentence being then pending before the home Government.
6 Mr. Seward says:
"It can hardly be necessary to direct your attention to the fact that
the Government of the United States is required by the highest con-
siderations of national dignity, duty, and honor to inquire into the
legality, justice, and regularity of the judicial proceedings which
have thus taken place; and that, after making such a careful scrutiny,
we shall expect to make known to Her Majesty's Government such
opinions as the President, upon due consideration, shall adopt. With
this view the United States consul at Toronto is this day instructed
to procure, for the information of this Department, a copy of the
record of the trial and conviction of Lynch and McMahon, and also
of all further trials and convictions of a similar character which
shall take place in Canada. I have now the honor to request you to
take such proceedings as you may think proper, to the end that such
applications of the consul shall be promptly granted.'
“It is to be noted that although Mr. Seward claimed as right that
which I have asked of your Government as a favor, it was promptly
conceded by the British Government.
Moore's Digest, vol. II, pp. 198, 199.
“If American citizens were condemned to death by a military tri-
bunal, not for actual participation in reported revolution but ofor
complicity only, or if condemned to death by such a tribunal for
actual participation but not after open, fair trial, with opportunity
for defense, demand delay of execution, and in either case report to
your Government evidence relied on to support death sentence."
This telegram was sent before the receipt in Washington of Mr.
Willis correspondence with Mr. Hatch, as above detailed. It was
MARTIAL LAW.
461
based upon a telegram from Mr. Willis, dated Jan. 30, but not re-
ceived at San Francisco till Feb. 6, which read as follows:
“Revolt over Sth. Casualties: Government, 1; royalist, 2. Court-
martial convened 17th; has tried 38 cases; 200 more to be tried and
daily arrests. Gulick, former minister, and Seward, minister, major
in Federal army, both Americans, and Rickard, Englishman, sen-
tenced to death; all heretofore prominent in politics. T. B. Walker,
formerly in the United States Army, imprisonment for life and $5,000
fine. Other sentences not disclosed, but will probably be death. Re-
quested copies of record for our Government to determine its duty
before final sentence, but no answer yet. Bitter feeling and threats
of mob violence, which arrival of Philadelphia yesterday may pre-
vent. Liliuokalani made prisoner 16th; on the 24th relinquished all
claims and swore allegiance Republic, imploring clemency for
Hawaiians. Government replies to Liliuokalani: "This document
can not be taken to exempt you in the slightest degree from per-
sonal and individual liability' for complicity in late conspiracy.
Denies that she had any rights since January 14, 1893, when she
attempted new constitution. “Fully appreciates her call to disaffected
to recognize Republic and will give full consideration to her unsel-
fish appeal for clemency' for participants."
In a note to Mr. Hatch, of February 23, 1895, a copy of which did
not reach Washington till March 8, Mr. Willis said: “The request for
copies of record before final sentence was, as I have heretofore
orally explained, to avoid the appearance of reviewing the delib-
erate final judgment of your Government. Copies of the record in
all cases, including those whose status as United States citizens is in
dispute, will, as I understand, after final sentence be supplied by
your Government. This considerate course will be duly appreciated
by my Government. Of the three requests submitted in the case of
J. F. Bowler, your Government has granted the one asking for a copy
of the record.” (For. Rel. 1895, II, 839–840.)
Mr. Gresham, writing to Mr. Willis, Feb. 28, 1895, with reference
to the latter's telégram of Jan. 30, and his request of January 28
for copies of the records, said: “You appear to have anticipated in
great measure the telegraphic instructions which were sent to you
on the 8th instant." (For. Rel. 1895, II. 846.)
“Your telegram 8th instant received. Sentences of death not yet
known to have been approved by President. Sentences in 25 cases
approved and made public, viz: Twenty-three Hawaiians, five to
ten years' hard labor; one Englishman, Col. V. V. Ashford, one year
and fine; and one American, J. F. Bowler, five years and fine of
$5,000. These two charged with misprision of treason. All required
to don prison garb.: One hundred and twenty tried, 21 more now on
462
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
joint trial, 2 acquitted, 3 deported, and 15 of different nationalities.
released on condition of leaving country. Over 200 yet in prison, of
whom 13 are Americans; latter confined without formal charges or
trial. Feeling less extreme.”
Moore's Digest, vol. II, p. 200; Mr. Willis, min. to Hawaii, to Mr.
Gresham, Sec. of State, tel., Feb. 17, 1895, For. Rel. 1895, II, 834.
9
It was afterwards held that J. F Bowler was not entitled to the
protection of the United States on the ground that he had been
naturalized in Hawaii. (Mr. Gresham, Sec. of State, to Mr. Willis,
min. to Hawaii, April 5, 1895, For. Rel. 1895 II, 853.)
Feb. 23, 1895, the following telegram, which reached San Fran-
cisco March 2, was sent by Mr. Willis:
“Gulick, Seward, Wilcox, and Rickard sentences confirmed by
President; thirty-five years' imprisonment at hard labor and $10,000
fine, each. Widemann and Walker, thirty years and $10,000 and
$5,000 fine, respectively. Gregg and Marshall, latter American, 19
years old, twenty years and $5,000 fine each. The two Lanes five
years and $5,000 fine each. Nowlein and Bertlemann, leaders in
conspiracy, who turned state's evidence, thirty-five years and $10,000
fine each, but sentence in both cases suspended. Davis, captain of
steamer which landed arms, also state's evidence, ten years and
$10,000 fine; sentence also suspended. Ex-Queen, five years and
$5,000 fine.” (For. Rel. 1895, II. 835.)
Telegram February 17 received. President disappointed and
anxious, because while it acknowledges my telegram of February 8,
it communicates no response to reasonable demand therein made, un-
der recognized principles of public law, that execution of death
sentence passed on American citizens be delayed until President
can have opportunity to examine evidence relied on to support sen-
tence. You will insist that copy of proceedings of trial, including
evidence, be furnished for that purpose, and if, in disregard of such
demand, the Hawaiian authorities enter upon actual preparation for
execution of the sentence or indicate or declare their intention to so
execute sentence, you will demand custody of prisoners, that they
may be placed on board the Philadelphia pending further instruc-
tions from the President. You will deliver copy of this telegram to
commander of that ship, who, if necessary, is expected to support
demand.”
Moore's Digest, vol. II, pp. 200, 201 ; Mr. Gresham, Sec. of State, to Mr.
Willis, Min. to Hawaii, tel. Feb. 26, 1895, For. Rel. 1895, II 843.
66
“With reference to your telegram of the 17th instant, touching
the imprisonment or condemnation of numerous persons in connec-
tion with the recent disturbance in Hawaii, I observe your state-
MARTIAL LAW.
463
ment that 13 American citizens are still in prison without charges
and without trial. This Government has no disposition to be ex-
acting with that of Hawaii, especially under present circumstances,
but it owes a duty to its citizens to see to it that they are not wantonly
subjected to arbitrary treatment. Though martial law has been pro-
claimed, it does not follow that aliens innocent of participation in
the acts which gave rise to its proclamation may be arrested and in-
definitely imprisoned without charges and without trial. The ex-
istence of martial law, while it may imply the suspension of the
methods and guaranties by which justice is ordinarily secured, does.
not imply a suspension of justice itself. You are instructed to insist
to the Hawaiian Government that the American citizen still im-
prisoned without charges and without trial shall be promptly tried
or promptly released."
Moore's Digest vol. II, p. 201 ; Mr. Gresham, Sec. of State, to Mr.
Willis, min. to Hawaii, tel., Feb. 25, 1895, For. Rel. 1895, II. 842.
!
>
"I enclose herewith copies of certain depositions These
depositions leave the question of Mr. Cranstoun's nationality in
doubt ... Under these circumstances the Department does not
now instruct you to make any representations to the Hawaiian Gov-
ernment but it is proper to express to you, for your own
guidance in similar cases, should they arise, the views here enter-
tained in regard to the course of action taken in that case.
“It appears that after having been kept in jail for nearly a month,
without any charges having been made against him, he was taken
under a heavy guard to a steamer, and would, in spite of his request
to see you, have been deported without having had an opportunity
then to do so had it not been for the accidental, but timely, inter-
position of the British commissioner.
“You state that when you asked the attorney-general for an ex-
planation of the proceeding, he replied that the cabinet had deter-
mined to deport the men in the exercise of the arbitrary power con-
ferred by martial law. As this was the only explanation he gave,
it is assumed that it was all he had to offer, and he gave it without
suggestion of any question as to Mr. Cranstoun's nationality.
If the position thus assumed be sound, the very proclamation of
martial law in Hawaii renders all foreigners there residing, includ-
ing Americans, liable to arrest and deportation without cause and
without any reason other than the fact that the executive power wills
it. They may be taken from their homes and their business; they
may be deprived of their liberty and banished; they may be denied
the ordinary as well as the special treaty rights of residence without
offense or misconduct on their part, simply in the exercise of 'arbi-
trary power.
464
SELECTED TOPICS. CONNECTED WITH LAWS OF WARFARE.
“To state such a proposition is, in the opinion of the President,
to refute it. "Truly viewed,' says an eminent author, 'martial law
can only change the administration of the laws, give them a rapid
force and make their penalties certain and effectual--not abrogate
what was the justice of the community before. The civil courts are
in part or fully suspended; but, in reason, the new summary tribunals
should govern themselves in their proceedings, as far as circum-
stances admit, by established principles of justice, the same which
had before been recognized in the courts. (Bishop's Criminal Law,
sec. 45.)
“In view of what has been statéd, your course in protesting against
the position assumed by the attorney-general of Hawaii is approved."
Moore's Digest, vol. II, p. 201; Mr. Gresham, Sec. of State, to Mr. Willis,
min. to Hawaii, Feb. 25, 1895, For. Rel. 1895, II, 842.
Cranstoun subsequently addressed a letter to the United States
commercial agent at Vancouver, British Columbia, inquiring whether
the United States would protect him in case he should return to
Honolulu to obtain testimony in a suit which he had brought against
the master and owners of the steamship Warrimoo for forcibly
bringing him away from Honolulu against his will at the time of his
expulsion. The Department of State replied: “As it appears from
Mr. Cranstoun's own sworn statement, ... that he is not an Ameri-
can citizen, but has only declared his intention to become such, he is
not entitled to claim the protection of this Government." (Mr.
Rockhill, Third Assist. Sec. of State, to Mr. Peterson, U. S. com.
agent at Vancouver, Sept. 16, 1895, For. Rel. 1895, II, 865.)
Complaints having been made against the Hawaiian Government
by persons claiming American citizenship, the minister of the United
States at Honolulu was instructed to ascertain whether they had by
permanent residence in Hawaii, the acquisition of its citizenship, or
participation in its political affairs, abandoned or lost their right to
American protection.
66 The case of James Dureell is not embarrassed by any such pre-
liminary question. I herewith inclose a copy of his affidavit received
here with your dispatch, No. 100, of April 11 last, from which it
appears that Dureell was born in the State of Louisiana in 1858, and
resided in the United States until September 14, 1894. He then went
to Honolulu and obtained temporary employment as a cook at the
Arlington Hotel, in that city. On November 8, 1894, he purchased
the lease and good will of a cigar store and soda water and fruit
stand, and gradually built up a lucrative business. On the 9th of
January last, while quietly seated in his store, he was arrested with-
out explanation or information of any charge against him, confined
in jail on common prison fare until the 27th of February following-
MARTIAL LAW.
465
a period of seven weeks—and then discharged without any trial,
charges, explanation, or opportunity of defense; nor has he since
his release been informed of the cause of his arrest.
“ He declares that he has never by word or deed forfeited his
allegiance to and his right to protection by this Government; that
he has neither done nor spoken anything directly or indirectly
against the Government of Hawaii or its laws; that he has never
expressed sentiments antagonistic to that Government or in any
manner counseled, encouraged, aided, or abetted its enemies either
in armed rebellion or secret plotting; and that he never possessed any
information which under existing laws it was his duty to report to
that Government.
“These statements establish in the opinion of the President, a
prima facie claim for substantial indemnity from the Hawaiian Gov-
ernment to Mr. Dureell. You will bring the case to the attention of
the Hawaiian authorities, leaving no doubt in their minds of the con-
fidence here felt that the Government of Hawaii will not refuse to
tender adequate reparation to this injured citizen of the United
States, nor hesitate to take prompt measures to exonerate him from
the imputation which this arbitrary treatment has left upon his
good name."
Moore's Digest, vol. II, pp. 202–204; Mr. Olney, Sec. of State, to Mr.
Willis, min. to Hawaii, June 12, 1895, For. Rel. 1895, II. 859.
In another instruction to Mr. Willis, on the same day, id. 860,
Mr. Olney said:
“I have to enjoin upon you the duty of satisfying yourself that
this person had not taken the oath of allegiance to the Hawaiian
Government prior to his arrest, and that the statements of his
affidavit as to his arrest and imprisonment are true. His arrival
in Honolulu subsequent to the proclamation of the present Govern-
ment and to the last elections held there, and the brevity of his stay,
exclude any unfavorable presumption that he may have, by some
voluntary act, renounced his right to protection as an American
citizen; and, in the light of his positive declarations that by no act
of omission or commission he has impaired his status as a citizen
of the United States or violated any obligation to the Republic of
Hawaii, his case seems to be especially meritorious.
“When you shall have become satisfied upon the points above in-
dicated, you will present the case to the Hawaiian authorities as in-
structed."
March 2, 1895, the Hawaiian Government stated that no persons
charged with complicity in the insurrection were then held in
custody except such as had been tried. The following persons, who
466
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
claimed to be American citizens, had been released: J. Ross, James
Durell, George Lycurgus, W. F. Reynolds, J. Mitchell, A. P. Peter-
son, Chas. Creighton, Edward France, H. A. Juen, P. M. Rooney,
Geo. Ritman, H. von Werthern, and Arthur White. Of these the
first five (Ross, Durell, Lycurgus, Reynolds, and Mitchell) were
unconditionally discharged no accusation having been brought
against them. The rest were allowed to leave, but were not to re-
turn without permission. (For. Rel. 1895, II, 850.)
As to the sentences of Maj. W. H. Seward, Chas. T. Gulick, Lewis.
Marshall, Col. V. V. Ashford, and Mr. Greig (a British subject), see
For. Rel. 1895, II, 854, 861, 862 and 863.
Jan. 1, 1896, all the remaining political prisoners were released
on parole. (For. Rel. 1895, II, 867.)
“Early in January last an uprising against the Government of
Hawaii was promptly suppressed. Martial law was forthwith pro-
claimed and numerous arrests were made of persons suspected of
being in sympathy with the Royalist party. Among these were sev-
eral citizens of the United States, who were either convicted by a
military court and sentenced to death, imprisonment, or fine, or
were deported without trial. The United States, while denying pro-
tection to such as had taken the Hawaiian oath of allegiance, in-
sisted that martial law, though altering the forms of justice, could
not supersede justice itself, and demanded stay of execution until
the proceedings had been submitted to this Government and knowl-
edge obtained therefrom that our citizens had received fair trial.
The death sentences were subsequently commuted or were remitted
on condition of leaving the islands."
Moore's Digest, vol. II, p. 204; President Cleveland, Annual Message,
Dec. 2, 1895. (For, Rel. 1895, I. xxix.)
“No question of importance has arisen with the Government of
the Hawaiian Islands during the past year. The cases of the con-
victed political prisoners, among whom were several citizens of the
United States, have been disposed of, in major part, by their re-
lease on parole-leaving only residual consideration of the claims for
indemnity, which in some instances have been filed.” (Report of
Mr. Olney, Sec. of State, to the President, Dec. 7, 1896, in relation
to foreign affairs, For. Rel. 1896, lxxv.)
Moore's Digest, vol. II, p. 204.
“The customary cordial relations between this country and France
have been undisturbed, with the exception that a full explanation
of the treatment of John L. Waller by the expeditionary military
authorities of France still remains to be given. Mr. Waller, formerly
United States consul at Tamatave, remained in Madagascar after
MARTIAL LAW.
467
his term of office expired, and was apparently successful in procuring
business concessions from the Hovas of greater or less value. After
the occupation of Tamatave and the declaration of martial law
by the French, he was arrested upon various charges, among them
that of communicating military information to the enemies of France,
was tried and convicted by a military tribunal, and sentenced to
twenty years' imprisonment.
“Following the course justified by abundant precedents, this
Government requested from that of France the record of the pro-
ceedings of the French tribunal which resulted in Mr. Waller's con-
demnation. This request has been complied with to the extent of
supplying a copy of the official record, from which appear the
constitution and organization of the court, the charges as formulated,
and the general course and result of the trial, and by which it is
shown that the accused was tried in open court and was defended by
counsel. But the evidence adduced in support of the charges--
which was not received by the French minister for foreign affairs
till the first week in October-has thus far been withheld, the
French Government taking the ground that its production in re-
sponse to our demand would establish a bad precedent. The efforts
of our ambassador to procure it, however, though impeded by recent
changes in the French ministry, have not been relaxed, and it is con-
fidently expected that some satisfactory solution of the matter will
shortly be reached. Meanwhile it appears that Mr. Waller's con-
finement has every alleviation which the state of his health and all
the other circumstances of the case demand or permit."
Moore's Digest, vol. II, pp. 204, 205; President Cleveland, Annual Mes-
sage, Dec. 2, 1895. For. Rel. 1895, I. xxiii.
John L. Waller, to whom the foregoing passage refers, was consul
at Tamatave from February, 1891, till January, 1894. Subsequently,
in the latter year, he was sued before his successor for negligence and
mismanagement of the estate of an American citizen, which he had
administered upon as consul, and a judgment was rendered against
him. Waller was detained in connection with this judgment when,
in December, 1894, the Frence bombarded Tamatave, captured it,
installed a garrison, proclaimed martial law, and put the mails under
surveillance. March 5, 1895, Waller was arrested by the French
authorities and his papers were seized. He was subjected to the usual
preliminary examinations, and on March 18, 1895, was brought to
trial before a military tribunal on charges (1) of dispatching a letter
from Tamatave without having had it viséed by the French authori-
ties, in violation of a public order of January 18, 1895, and (2) of
attempting to correspond with the enemies of France and to furnish
them information prejudicial to the military and political situation
468
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of France. He was convicted and sentenced by the unanimous vote
of the court on both charges, and an appeal taken to a council of
revision was rejected March 23, 1895.
As stated above, the evidence when received at Paris was at first
withheld. Subsequently, however, the French Government, without
admitting any duty to permit an inspection of it-a duty which that
Government claimed from the outset did not exist–submitted the
evidence to Mr. Eustis, United States ambassador at Paris, for such
examination as he chose to make. Mr. Eustis accordingly examined
it, and, under the instructions of the Department of State, reported
his conclusions, which were adverse to Waller. It appeared that
Waller's guilt on the first charge, which was punishable only with a
nominal fine, stood confessed. On the second charge, which was the
grave one, there was much evidence, including a letter to the agent
of the Hovas, the enemies of the French. This letter conveyed in-
formation which invited an attack on the garrison, besides making
allegations against the French which tended to inflame the feelings
of the natives against them. In another letter, which was addressed
to his wife, then at Antananarivo, besides giving inforination of in-
terest to the Hovas, he denounced "D. and P." (who were supposed
to be two American citizens, named Duder and Poupard, against
whom he had a grudge) as French spies, thus exposing them to the
Hovas's vengeance.
“On all the evidence, and in view particularly of his own letters,
Waller was unquestionably guilty of an offense against the French
Government of a serious character, and fully justifying severe pun-
ishment. It will be seen, however, that at a time when it seemed
uncertain whether or not an inspection of the evidence in Waller's
case would be permitted, Mr. Eustis, by direction of the Department,
submitted the record of the charges, procedure, sentence, etc., to an
eminent French lawyer, M. Eduard Clunet, and asked his opinion
upon the validity of the proceedings as thus shown. The opinion,
given in writing, is annexed to this report. It points out that a
proclamation of martial law was the basis of the jurisdiction of the
court, and that the record is defective in not showing the issuance
of such a proclamation. But as there is no doubt that such a procla-
mation was issued—Waller himself só states—the defect would seem
to be of a technical rather than a substantial nature, and easily
curable by an amendment of the record.
“The opinion also sets forth certain other peculiarities of the pro-
ceedings, which are treated by M. Clunet rather as irregularities than
as matters touching the jurisdiction. His conclusion upon the whole
case, however, is that there is no mode by which the Waller judg-
ment could be successfully challenged through the courts, and that
any relief from his sentence must be sought through an applica-
tion for clemency. If the evidence had not been produced and the
MARTIAL LAW.
469
substantial merits of the case thus disclosed, it might have been the
duty of this Government to test the accuracy of M. Clunet's findings
by appropriate legal proceedings or otherwise. But the evidence
having been exhibited and Waller having been thus satisfactorily
shown to have given the French Government grave cause of com-
plaint and to be guilty of the offenses charged against him, an at-
tack upon the proceedings of the Tamatave court for alleged irregu-
larities—even if attended with the most successful result-could not
do more for Waller than accomplish his release.
So far as compensation by damages for any illegal arrest or de-
tention is concerned, this could only be sought later, either through
the action of the United States or by suit by Waller himself in the
French courts. But in view of Waller's willful and culpable attempt
against the French authority in Madagascar, it is manifest that no
claim for damages on Waller's account could be properly pressed
by the United States, or could be expected to be entertained by the
French Government. An international reclamation, the rejection of
which may justify reprisals or even be treated as a casus belli, ought
1100 to rest on pure technicalities when the facts and evidence are
against the claim. It should be founded upon something more than
the mere nonobservance of legal formalities—upon something more
than irregularities originating in ignorance or inadvertence rather
than in intention, and not necessarily nor actually working any sub-
stantial wrong or injustice.
66
Mr. Clunet's opinion on the question of the jurisdiction of the
courts-martial at Tamatave is as follows:
“The undersigned, Edouard Clunet, advocate of the court of
Paris, consulted by the ambassador of the United States at Paris on
the questions hereinafter enumerated, having seen the affidavit of
John Waller, dated August 25, 1895, at the prison of Clairvaux
(Auge); having seen the official copy of the judgment of the first
permanent court-martial, sitting at Tamatave, dated March 18,
1895, has delivered the following opinion:
The question of the jurisdiction of the court-martial in the ques-
tion of John Waller is a delicate one, by reason of the somewhat
vaguely defined political and international position of France at
Tamatave before the occupation of Antananarivo by French forces
on the 1st of October, 1895, the consequences of which will directly
modify the antecedent territorial sovereignty.
“France has occupied Tamatave for several years. She had even
instituted a French tribunal there, composed of judges by profession,
with civil, commercial, and correctional jurisdiction (see treaty of
December 17, 1883, and the law of judicial organization of April 8,
470
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1891, Clunet's Journal of 1891, p. 356). But herself restricting the
powers of the delegates of her sovereignty by the decree of August
24, 1892, she limited the extent of that jurisdiction to Frenchmen
solely, so that foreigners and Malagasy might avoid it (see Le Gar-
rec, advocate at Tamatave, on the working of the French courts in
Madagascar in dealings with French citizens, natives, and aliens,
Clunet's Journal, 1895).
“ John Waller, formerly vice-consul of the United States at Mada-
gascar, had been relieved of his post. He was in March, 1895, no
more than an ordinary citizen, a foreigner residing at Tamatave.
"As such he was not subject to the jurisdiction of the French com-
mon-law tribunal at Tamatave, no new decree having as yet extended
to the subjects of any power the effect of the decree of August 24,
1892 (see text in Clunet's Journal, 1892, p. 1084), as was neverthe-
less provided in the second paragraph of the said decree.
“Nor was he subjected to any native or foreign jurisdiction, since
as far back as January, 1895, the military campaign against the Hova
Government had already begun, Majunga being occupied by a bat-
talion of marines in January, 1895, and because, in fact, the French
authorities alone ruled at Tamatave.
Supposing Waller, or any other foreigner not in the army or
assimilated thereto, guilty of a crime against the external safety of
the French state, would he have been subject to the exceptional juris-
diction of a court-martial?
“If the court-martial at Tamatave had been constituted as a
court-martial in the expeditionary forces,' its jurisdiction as regards
a civilian would have been based upon texts of law. Article 84 of
the code of maritime justice lays down the limits of jurisdiction of
such courts-martial, placed in exceptional and perilous circum-
stances; it permits them to apply articles 62 to 69, 71, and 75 of the
code of military justice, which code gives direct jurisdiction to
courts-martial in the armies and in the territorial conscriptions in
a state of war' in respect of foreigners having committed crimes of
the nature of that charged against Waller. But the judgment of the
court-martial of Tamatave does not mention either that article 84
nor those quoted from the code of military justice to which the said
article refers, because the court did not rely upon them.
"In point of fact, the court-martial of Tamatave is, as it styles
itself, a 'permanent court-martial,' as provided by the code of mari-
time justice for a state of peace, and in a normal condition of things.
It existed prior to the armed conflict of France with the Hova Gov-
ernment; it was a normal court, the jurisdiction of which is pre-
scribed by articles 76 to 83 of the code of maritime justice (title 1,
jurisdiction of maritime courts sitting upon land; chap. 1, sec. 1,
MARTIAL LAW.
471
1
jurisdiction of permanent courts-martial in maritime districts).
These courts have jurisdiction only over individuals belonging to
the naval forces of those assimilated thereto. John Waller did not
belong to that category.
*
*
}
“One .circumstance alone would have given jurisdiction to the
permanent court-martial' of Tamatave in regard to even civilian
delinquents-that is to say, the lawful proclamation, prior to the
proceedings, of a state of siege.
“ The declaration of a state of siege and its effects are regulated
by the law of August 3, 1849, by the law of April 3, 1878, and for
places in a state of war by a decree of October 4, 1891, rendered in
consequence of the two preceding laws.
“Tamatave in March, 1895, might have been considered as a
place in a state of war..
“ By virtue of article 189 of the decree of October 4, 1891, the
military commander may declare a state of siege in case of invest-
ment of the place, of attack, of internal sedition, and of armed gath-
erings within a radius of 10 kilometers.
“In proclaiming a state of siege the military commander makes
known that all offenses, which he does not consider it his duty to
submit to the ordinary tribunals, shall be tried by the military tri-
bunals, whatever be the status of the delinquents.
“What did the military authorities do at Tamatave? Did they
proclaim a state of siege? At what period did they proclaim it?
Was such declaration made in the circumstances provided by the law
and in the prescribed forms?
'It may be doubted whether such was the case in view of the
laconic tenor of the judgment of March 18, 1895.
“ This judgment, in fact, only mentions upon page 2, and in quite
an incidental manner, that Tamatave is in a state of siege.'
“Now, from the point of view of the jurisdiction of the perma-
nent court-martial' in respect of a civilian, this was a circumstance
of capital importance, as it alone could give jurisdiction over him.
Nevertheless, the judgment does not mention either the law of 1849,
nor the law of 1878, nor the decree of 1891, while, in order to fulfill
article 170 of the code of maritime justice, it reproduces all the arti-
cles of law upon which it rests its jurisdiction and justifies the sen-
tence.
Even if no court of common law or an exceptional jurisdiction
existed or was competent at Tamatave to take cognizance of the
crime charged against John Waller or any other civilian, it does not
follow that they would remain unpunished. Accused of a criminal
472
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
offense perpetrated within the territory where French sovereignty
was de facto exercised, and finding no judges there to judge them,
the delinquents should have been removed to the nearest portion of
French territory (to the island of Réunion, for example), where all
the organs of French justice were performing their regular func-
tions, and should have been brought before a court of common law,
having jurisdiction over them, in accordance with the rules of the
code of criminal procedure. The crime charged against Waller
(article 78 of the Penal Code) belonged to the jurisdiction of the
criminal jury (court of assizes).
“In order to understand the actual facts, it must be remembered
that at Tamatave at that period the French army was in a condition
of open war with the Hovas, and that in particular at Tamatave it
was in presence of the enemy, for at a short distance the Malagasy
troops occupied the Fort of Farafata.
“In such a situation a military post, established even before hos-
tilities were begun, easily assumes the characteristics of an army of
occupation. Now, armies at such a junction are authorized by the
law of nations and the practice of nations to secure their own pro-
tection by exceptional methods.
“We may consult upon this point an authoritative article on the
jurisdiction of armies of occupation in regard to offenses committed
by aliens, etc. (Clunet's Journal, 1882, p. 511, and following).
Among the quotations may be remarked that of the American In-
structions of 1863, and prepared for the armies in the field by the
eminent Professor Lieber, revised by a commission of officers, and
ratified by President Lincoln:
« Art. 7. Martial law extends to property and persons, without
distinction between the subjects of the enemy and other foreigners.'
“Art. 16. The consuls of the American and European nations are
not considered as diplomatic agents. Nevertheless, their chanceries
and their persons shall not be subjected to martial law except in
cases of necessity. Any offense which they shall commit against the
military government shall be punished as if it had been committed
by an ordinary citizen, and such offense can not give rise to any in-
ternational claim.'
“ Conclusion.—The first permanent court-martial sitting at Tama-
tave had jurisdiction over John Waller, who was neither a military
man nor a person assimilated thereto, if Tamatave had been, prior
to the proceedings, declared in a state of siege, under the condi-
tions laid down by the laws of August 3, 1849, April 3, 1878, and
the decree of October 4, 1891.
“In any case, there is a serious omission in the judgment of
March 18, 1895, consisting in its not having stated the grounds of
MARTIAL LAW.
473
the exceptional jurisdiction, in its not having cited the laws and de-
crees which justified such jurisdiction, and in its not having repro-
duced in fine the text of the declaration of the state of siege, the basis
of its exceptional common-law jurisdiction in regard to a civilian, as it
reproduces the text (without date, however) of the warrant of the
delegate of the chief of the naval division relating to the transmis-
sion of correspondence.”
The second part of the opinion relates to the regularity of the
judgment of the court. This subject is discussed fully and minutely,
with the result that various irregularities were disclosed; but it
appeared that the periods of appeal having elapsed, they could no
longer be made the subject of juridical appeal. The irregularities
related to (1) dates in the judgment, (2) the constitution of the
court, (3) the formal description of the advocate, (4) the absence
from the record of the evidence taken in the preparatory inves-
tigation and certain informalities and defects in the evidence taken
at the trial, and (5) defects in procedure and sentence. (H. Doc. 225,
54 Cong. 1 sess.; For. Rel. 1895, I, 304–306; 306–309.)
Moore's Digest, vol. II, pp. 205–213.
66
I have to acknowledge the receipt of your dispatch No. 155,
of
the 25th of May last, with which you transmit a copy of a law on the
state of siege recently passed by the Ottoman Parliament. The
law authorizes the Sultan, and, under certain specified circum-
stances, the military commanders to proclaim a state of siege and
prescribes the manner in which it shall be enforced. Under its
provisions Constantinople has been proclaimed to be in a state of
siege. No official notice has been given to the foreign missions,
and nothing has occurred to present any question for practical
decision.
6. The consul-general in a despatch to you requests your opinion
as to how far the law on the state of siege would under the plea of
military necessity be allowed to overrule Article IV. of the treaty
of 1830, and you refer the question to the Department for decision.
“ Martial law is generally supposed to supersede all other law,
all statutes and all treaties. The military commander who enforces:
it is not expected to and does not regard the civil law of his own
country when it conflicts with what he is pleased to regard as martial
law, and which is simply his own will, and it can not be expected
that he will pay much greater respect to the treaties of his
Government than to its laws. But every American citizen in a
foreign land is entitled at all times to the protection accorded to
him by our treaty stipulations with that country in which he may
be residing. The fact that that country is at war with another
110678—19
31
474
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
foreign power does not affect his status so long as the United States
retains its peaceful relations with the two powers.
“In view of the above state of facts, should any attempt be made
to apply any provision of martial law in conflict with any stipulation
of our treaty with the Ottoman Empire to an American citizen resid-
ing in Turkey, our representatives will be expected to interpose with
the proper authorities in favor of their countrymen, and to demand
that all treaty stipulations be strictly observed in the consideration
and decision of the case. All cases arising under the law will be at
once reported to the Department.”
Moore's Digest, vol. II, pp. 641, 642; Mr. F. W. Seward, Act. Sec. of
State, to Mr. Maynard, June 26, 1877. MS Inst. Turkey, III. 251.
66
“Your despatch No. 124, of the 14th June last, has been received.
You therein report the bombardment of Tamatave by the French
on the 10th of that month, and your subsequent notification by the
French naval commander that the occupation of the city by the
forces of the Republic has put an end to your functions as the
consul of the United States accredited to the Hovas Government.
It further appears that the town has been proclaimed in a state of
siege under the French law, and that the customs and other public
business are administered by the French authorities. In this state
of things you ask for instructions as to your duties and the dis-
position to be made of the archives and property in your care.
"In reply I have to instruct you that while the temporary sus-
pension of Hovas authority in Tamatave and its replacement by
French military control may interrupt your relations with the Hovas
Government, it does not annul your relations with the United States
Government, which maintains you at the port of Tamatave 'for the
representative protection of any interests of citizens of the United
States who may be found there. You will, therefore, remain at
Tamatave for the present and continue your charge of the archives
and property of the consulate without interruption. You will in-
form the French authorities that under the circumstances in which
you are placed you will in conformity with their order suspend the
exercise of representative consular functions in Tamatave towards
the Hovas Government awaiting the instructions which your own
Government may give you after it has fully considered the situa-
tion. You will, however, add that the temporary intermission of
your relations with the Madagascan authorities in Tamatave does
not exempt you from the moral obligation as a representative of
the Government of the United States to use your good offices for
the protection of American citizens and property within your juris-
dictional limits, and that in case anything should occur calling for
your intervention you will feel it your duty to address yourself to
MARTIAL LAW.
475
whatever authority may be in responsible administrative control of
the port."
Moore's Digest, vol. II, pp. 642, 643 ; Mr. Frelinghuysen, Sec. of State,
to Mr. Whitney, acting U. S. consul at Tamatave, Aug. 28, 1883, 108
MS. Inst. Consuls, 185.
On a report that the German consul at Apia had declared war
against Matkafa, an aspirant to the kingship of Samoa who had
been in hostile collision with a squad of German marines, the min-
ister of the United States at Berlin was instructed to say that his
Government assumed that the German officials in Samoa would be
instructed carefully to refrain from interference with American
citizens and property there, since no declaration of martial law
could extend German jurisdiction so as to include control of Ameri-
can citizens in Samoa. Such a pretension could not be recognized
or conceded by this Government.”
The German Government replied that when war was declared
against Mataafa the commander of the German squadron issued a
proclamation by which foreigners residing in Samoa were subjected
to martial law; that while “international law would, to a certain
extent, not prevent such a measure,” yet Prince Bismarck thought
that the military authority had gone too far in the present instance;
and that the commander had been instructed to withdraw the part
of his proclamation relating to foreigners.
Moore's Digest, vol. II, p. 643; Mr. Bayard, Sec. of State, to Mr. Pendle-
ton, min. to Germany, tel., Jan. 31, 1889; Count Arco-Valley, German
min., to Mr. Bayard, Sec. of State Feb. 1, 1889; H. Ex. Doc. 119, 50
Cong. 2 sess. 2, 3.
With regard to the foregoing instances, it may be pointed out that
the instruction of Mr. F. W. Seward to Mr. Maynard, in 1877, related
to the question of a government's assuming within its own terri-
tory, by a proclamation of martial law, jurisdiction over the citizens
of a friendly government to whom it had by treaty conceded the
privilege of extraterritoriality. In the case of Madagascar in 1883,
and of Samoa in 1889, where martial law was proclaimed in the
extraterritorial country by a civilized power, the opinions of the De-
partment of State appear to be contradictory.
It will be observed that in the well-considered case of John L.
Waller, in Madagascar in 1895, the jurisdiction of the French au-
thorities, under their proclamation of martial law, was admitted
with regard to the acts with which Waller was charged, which were
offences against the laws of war. (See For. Rel. 1895, I. 251; and
supra, § 196.
Moore's Digest, vol. II, p. 644.
476
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Martial law is the law of military necessity in the actual presence
of war. It is administered by the general of the Army, and is under
his supreme control.
United States v. Diekelman, 92 U. S. 520.
A merchant vessel of one country visiting, for the purpose of
trade, a port of another where martial law has been established,
under belligerent right, subjects herself to that law while she is in
such port.
United States v. Diekelman, 92 U. S. 520.
See, to the same effect, Mr. Seward, Sec. of State, to Baron von Gerolt,
Prussian min., Oct. 11, 1862, MS. Notes to Prussian Leg. VII, 146.
Moore's Digest, vol. VII, p. 277.
OFFENDERS AGAINST THE LAWS OF WAR.
A belligerent party which violates the provisions of the said Reg-
ulations (annexed to Hague Convention IV, 1907], shall, if the case
demands, be liable to pay compensation. It shall be responsible for
all acts committed by persons forming part of its armed forces.
Article 3, Hague Convention IV, 1907.
[For a discussion of certain specific offences against the laws of
war, see “The Laws of Land Warfare," United States Government
Printing Office, 1919, citations collected under the headings of Arti-
cles 22 and 23, Regulations, Hague Convention IV, 1907.]
Article 84. Offenders against the laws of war are liable to the
punishments specified in the penal law.
This mode of repression, however, is only applicable when the person of the
offender can be secured. In the contrary case, the criminal law is powerless,
and, if the injured party deem the misdeed so serious in character as to make
it necessary to recall the enemy to a respect for law, no other course than a
resort to reprisals remains.
Institute (1880), pp. 41, 42.
Article 1. Each of the contracting Parties shall undertake to
elaborate a penal law covering all possible infractions of the Geneva
Convention.
Article 2. Within a period of three years, these laws shall be pro-
mulgated and notified to the Swiss Federal Council, which shall
communicate them through diplomatic channels to the signatory
Powers of the Geneva Convention.
The changes which any of the contracting States shall later make
in its penal code shall also be notified to the Swiss Federal Council.
Article 3. A belligerent State which shall make complaint of a
violation of the Geneva Convention by the ressortissants of another
belligerent State shall have the right to request, through the media-
tion of a neutral State, that an inquiry be instituted. The accused
State shall be obliged to have its authorities institute this inquiry,
to make known the result to the neutral State which has acted as
intermediary, and, if necessary, to cause the guilty to be punished
under the criminal laws.
Article 4. The states signatory to the Geneva Convention which
shall not have subscribed in the first instance to the present act, may
477
478
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
do so at any time by a notification in the form prescribed for ad-
hering to the Convention itself, addressed to all the States that are
already signatories.
Institute (1895), p. 118.
Alien, with national commission.
An alien, under the sanction of a national commission, cannot
commit piracy while he pursues his authority. His acts may be
hostile, and his nation responsible for them. They may amount to
a lawful cause of war, but they are never to be regarded as piracy.
The Barbary powers, notwithstanding some doubts which formerly
existed, are now, and for a century past have been, regarded as
lawful powers, and not pirates. They have all the insignia of reg-
ular independent governments, and are competent to maintain the
European relations of peace and war. Cicero, and, after him,
Grotius, define a regular enemy to be a power which hath the
elements or constituents of a nation, such as a government, a code
of laws, a national treasury, the consent and agreement of the citi-
zens, and which pays a regard to treaties of peace and alliance; and
all these things, says Bynkershoek, are to be found among the states
of Barbary.
Kent, vol. I, pp. 202, 203.
At the Brussels Conference of 1874, a suggestion was made, on
behalf of France, to provide by international agreement a single
system for the repression of offences against the laws of war, to be
put in force by each Power as part of its military law (Parl. Paper,
Miscell. No. 1, 1875, p. 20). Nothing has, however, been done in this
direction. With reference only to offences against the Geneva Con-
vention, the Institut de Droit International, in 1895, drafted a set
of rules (see Annuaire, t. xiv, p. 188); and the Geneva Convention
of 1906 followed suit in Articles 27 and 28 (Arts. 68 and 69 supra),
to which, as has already been explained, the British Government have
been unable to accede. The unauthorized use of the Red Cross em-
blem had been, however, already made illegal in many countries, the
laws of which upon this subject are set out in the Actes de la Con-
férence, pp. 166–174, as also in Parl. Paper 1908 [Cd. 3933], pp.
64–74. Very little is to be found in English Statutes or Regulations
with reference to offences against International Law.
Holland, p. 60.
Individual offenders.
Individuals offending against the laws of war are liable to such
punishment as is prescribed by the military code of the belligerent
into whose hands they may fall, or, in default of such code, then
OFFENDERS AGAINST THE LAWS OF WAR.
479
to such punishment as may be ordered, in accordance with the laws
and usages of war, by a military court.
Holland, pp. 59, 60.
Offences by an entire corps.
When a whole corps systematically disregards the laws of war,
e. g. by refusal of quarter, any individuals belonging to it, who are
taken prisoners, may be treated as implicated in the offence.
Holland, p. 60.
.
Methods of obtaining satisfaction.
If the laws of war are broken, there are three possible methods of
obtaining satisfaction to be considered :-
(1) The damaged belligerent may himself punish the offending enemy soldiers
or nationals.
(2) He may lodge with the other belligerent a protest against the infraction,
and if it is a case in which an indemnity will compensate for the damage, claim
one under Article III of the Hague Convention (the diplomatic prelude to the
Règlement).
(3) If the actual offender cannot be reached and if the other belligerent has
refused satisfaction, the damaged belligerent may resort to reprisals.
As to the case coming under (1) above, nothing need be said, except
that the punishment of offenders, however manifest and grave their
offence, should take place only after a fair trialby a military court,
a council of war, or whatever kind of court has cognisance of offences
against war law in each army; and that sentences of death should
invariably be subject to the approval of the commander-in-chief.
The question of a man's life or death is as grave as the question of
levying a contribution and ought to be decided by no less supreme
and responsible an authority. It is not always easy, under the
unfavourable conditions of war, to secure that detachment of spirit
and judgment, that freedom from passion and emotion, which ought
to mark every judicial process. But the very necessity for a trial
and for the case against the accused being set down in writing (as is
usual) makes for justice. Perhaps some day one may see a special-
ised body-a very few would suffice-of “war law judges” in each
army, before whom all cases of violation of the laws and usages of
war shall be heard.
Spaight, pp. 461, 462.
79
Indemnity.
Article III of the Hague Convention [IV, 1907] speaks of an
indemnity, being paid in “proper cases.” What proper cases"
would be is not defined; presumably cases in which the damage caused
by the violation is capable of being reduced to a money basis, such as
480
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
a case of damage to property. The aggrieved belligerent would still
be entitled to punish the offenders—if he could capture them—in such
cases as treachery and the use of poison.
Spaight, p. 462.
Whatever may be the cause of a war that has broken out, and
whether or no the cause be a so-called just cause, the same rules of
International Law are valid as to what must not be done, may be
done, and must be done by the belligerents themselves in making
war against each other, and as between the belligerents and neutral
States. This being the case, the question as to the causes of war is of
minor importance for the Law of Nations, although not for inter-
national ethics.
Oppenheim, vol. 2, p. 72.
The first article of the Convention [Hague II, 1899] bound the
signatory powers to issue instructions to their land forces in con-
formity with the annexed Regulations. The Hague Conference of
1907 not only reënacted this obligation, but improved the Regula-
tions, and made the contracting parties responsible, when belliger-
ents, for all acts committed by persons forming part of their armed
forces, and rendered them liable to pay compensation if the case
demanded it.
Thus the old customary law based on general usage has been
largely superseded by rules deriving their force from express consent
given in the form of signatures to a law-making treaty. Practically
the whole civilized world has assented to it; and a state that openly,
avowedly, and of set purpose, violates its provisions will dishonor
its own signature and write itself down as an unscrupulous pledge-
breaker. It will not find such a reputation helpful when next it
wants to come to an agreement with its neighbors, even if they do
not rise in indignation at the moment and compel it to mend its ways.
We are not speaking here of the possible excesses of troops that have
got completely out of control, or of deplorable occurrences, such as
the shooting of a wounded foe, which may happen occasionally in
the hurly-burly of conflict without any command from responsible
authorities. These things are incidents of all wars. We must look
to increased self-control and improved discipline to reduce them to
a minimum; and as long as they exist, reputable states are bound to
punish their authors. What we have in mind is the case of a con-
scious and deliberate violation of the laws of war as a matter of
state policy. Now that these laws are being clearly defined and
solemnly accepted by all civilized states, the nation that could thus
act must possess at once extreme unscrupulousness and enormous
strength. It is just possible that now, and again such a combination
OFFENDERS AGAINST THE LAWS OF WAR.
481
would occur. A ruler drunk with the consciousness of overwhelming
power might venture to defy the moral sentiments of mankind, but
only to discover by and by that outraged humanity avenges itself in
unexpected ways. He could not ride off on the plea of military neces-
sity; for, as Professor Westlake has been careful to point out, we
have evidence in the preamble of the Hague Conventions on the sub-
ject that “military necessity has been taken into account in framing
the Regulations, and has not been left outside to control and limit
their application." The powers distinctly say that the wording of
the rules which they have drawn up “has been inspired by the desire
to diminish the evils of war as far as military necessities permit."
Those, therefore, who imagine that a state is free to ignore because
of the exigencies of the moment any rule to which it has subscribed
its signature are as erroneous in their reasoning as they are anarchi-
cal in their sentiments. The laws of war are made to be obeyed, not
to be set aside at pleasure.
Lawrence, pp. 393, 394; Westlake, vol. 2, p. 57.
ART. 45. Whosoever relieves the enemy with money, victuals, or
ammunition, or knowingly harbors or protects an enemy, shall suffer
death, or such other punishment as a court-martial may direct.
ART. 46. Whosoever holds correspondence with, or gives intelli-
gence to, the enemy, either directly or indirectly, shall suffer death,
or such other punishment as a court-martial may direct.
ART. 56. Any officer or soldier who does violence to any person
bringing provisions or other necessaries to the camp, garrison, or
quarters of the forces of the United States in foreign parts, shall
suffer death, or such other punishment as a court-martial may direct.
ART. 57. Whosoever, belonging to the armies of the United States
in foreign parts, or at any place within the United States or their
Territories during rebellion against the supreme authority of the
United States, forces a safe-guard, shall suffer death.
Rev. Stat., sec. 1342.
All persons who, in time of war, or of rebellion against the su-
preme authority of the United States, shall be found lurking or act-
ing as spies, in or about any of the fortifications, posts, quarters, or
encampments of any of the armies of the United States, or elsewhere,
shall be triable by a general court-martial, or by a military commis-
sion, and shall, on conviction thereof, suffer death.
Rev. Stat., sec. 1343.
The law of war does not only disclaim all cruelty and bad faith
concerning engagements concluded with the enemy during the war,
put also the breaking of stipulations solemnly contracted by the bel-
482
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ligerents in time of peace, and avowedly intended to remain in force
in case of war between the contracting powers.
It disclaims all extortions and other transactions for individual
gain; all acts of private revenge, or connivance at such acts.
Offenses to the contrary shall be severely punished, and especially
so if committed by officers.
Lieber, art. 11.
Deserters from the American Army, having entered the service of
the enemy, suffer death if they fall again into the hands of the
United States, whether by capture, or being delivered up to the
American Army; and if a deserter from the enemy, having taken
service in the Army of the United States, is captured by the enemy,
and punished by them with death or otherwise, it is not a breach
against the law and usages of war, requiring redress or retaliation.
Lieber, art. 48.
Armed prowlers, by whatever names they may be called, or per-
sons of the enemy's territory, who steal within the lines of the hostile
army for the purpose of robbing, killing, or destroying bridges,
roads, or canals, or of robbing or destroying the mail, or of cutting
the telegraph wires, are not entitled to the privileges of the prisoner
of war.
Lieber, art. 84,
War-rebels are persons within an occupied territory who rise in
arms against the occupying or conquering army, or against the au-
thorities established by the same. If captured, they may suffer
death, whether they rise singly, in small or large bands, and whether
called upon to do so by their own, but expelled, government or not.
They are not prisoners of war; nor are they if discovered and se-
cured before their conspiracy has matured to an actual rising or
armed violence.
Lieber, art. 85.
If a citizen of the United States obtains information in a legi-
timate manner, and betrays it to the enemy, be he a military or civil
officer, or a private citizen, he shall suffer death.
Lieber, art. 89.
A traitor under the law of war, or a war-traitor, is a person in a
place or district under martial law who, unauthorized by the mili-
tary commander, gives information of any kind to the enemy, oi
holds intercourse with him.
Lieber, art. 30.
OFFENDERS AGAINST THE LAWS OF WAR.
483
The war-traitor is always severely punished. If his offense con-
sists in betraying to the enemy anything concerning the condition,
safety, operations, or plans of the troops holding or occupying the
place or district, his punishment is death.
Lieber, art. 91.
If the citizen or subject of a country or place invaded or con-
quered gives information to his own government, from which he is
separated by the hostile army, or to the army of his government, he
is a war-traitor, and death is the penalty of his offense.
Lieber, art. 92.
No person having been forced by the enemy to serve as guide is
punishable for having done so.
Lieber, art. 94.
If a citizen of a hostile and invaded district voluntarily serves
as a guide to the enemy, or offers to do so, he is deemed, a war-
traitor, and shall suffer death.
Lieber, art. 95.
A citizen serving voluntarily as a guide against his own country
commits treason, and will be dealt with according to the law of his
country.
Lieber, art. 96.
Guides, when it is clearly proved that they have misled intention-
ally, may be put to death.
Lieber, art. 97.
The law of war, like the criminal law regarding other offenses,
makes no difference on account of the difference of sexes, concerning
the spy, the war-traitor, or the war-rebel.
Lieber, art. 102.
Armed or unarmed resistance by citizens of the United States
against the lawful movements of their troops is levying war against
the United States, and is therefore treason.
Lieber, art. 157.
1
Penalties for States.-From the inherent nature of war as a last
remedy of States, and from the nature of governments themselves,
no penalties can be directed against the State itself, although certain
practical measures are recognized in international law for securing
484
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the legitimate conduct of war by belligerents which will be considered
under the following heads: (a) Public complaints; (b) punishment
of individuals; (c) reprisals or retaliation; and (d) taking hostages.
U. S. Manual, p. 129.
Complaints.—Complaints through the public, and especially for-
eign, press have force solely through the formation of adverse public
opinion, which no nation at war can afford to disregard.
(2) Complaints sent through neutral States the only channel of
diplomatic intercourse-may result in mediation or good offices, or
intervention.
(3) Complaints sent direct by parlementaires made use of between
commanders of belligerent forces produce results in the future avoid-
ance of acts complained of or in the punishment of offenders for
violations of the laws of war.
U. S. Manual, p. 129.
1
Offenses committed by armed forces.—The principal offenses of
this class are: Making use of poisoned and otherwise forbidden
arms and ammunition; killing of the wounded; refusal of quarter;
treacherous request for quarter; maltreatment of dead bodies on the
battle field; ill treatment of prisoners of war; breach of parole by
prisoners of war; firing on undefended localities, abuse of the flag
of truce; firing on the flag of truce; abuse of the Red Cross flag
and emblem; and other violations of the Geneva Convention; use
of civilian clothing by troops to conceal their military character
during battle; bombardment of hospitals and other privileged
buildings, improper use of privileged buildings for military pur-
poses; poisoning of wells and streams; pillage and purposeless
destruction; ill-treatment of inhabitants in occupied territory. In-
dividuals of the armed forces will not be punished for these offenses
in case they are committed under the orders or sanction of their gov-
ernment or commanders. The commanders ordering the commission
of such acts, or under whose authority they are committed by their
troops, may be punished by the belligerent into whose hands they
may fall.
U. S. Manual, pp. 129, 130.
Effect of disregard of war law by entire corps.—When an entire
corps, or body of troops, systematically disregards the laws of war,
e. g., by refusal of quarter, any individuals belonging to it who are
taken prisoners may be treated as implicated in the offense.
U. S. Manual, p. 130.
OFFENDERS AGAINST THE LAWS OF WAR.
485
Refusal of quarter.--All troops of the enemy known or discovered
to give no quarter in general, or to any portion of the army, receive
none.
U. S. Manual, p. 130.
Hostilities committed by individuals not of armed forces.—Persons
who take up arms and commit hostilities without having complied
with the conditions prescribed for securing the privileges of belliger-
ents, are, when captured by the enemy, liable to punishment for such
hostile acts as war criminals.
U. S. Manual, p. 130.
War rebels.—War rebels are persons within an occupied territory
who rise in arms against the occupying or conquering army, or
against the authorities established by the same. If captured, th
may suffer death, whether they rise singly, in small or large bands,
and whether called upon to do so by their own, but expelled govern-
ment or not. They are not prisoners of war; nor are they, if dis-
covered and secured before their conspiracy has matured to an actual
rising or armed violence.
U. S. Manual, p. 130.
Highway robbers and pirates of war.-Men, or squads of men, who
commit hostilities, whether by fighting, or by inroads for destruction
or plunder, or by raids of any kind, without commission, without
being part and portion of the organized hostile army, and without
sharing continuously in the war, but who do so with intermitting
returns to their homes and avocations, or with the occasional assump-
tion of the semblance of peaceful pursuits, divesting themselves of
the character or appearance of soldiers—such men, or squads of men,
are not public enemies, and, therefore, if captured, are not entitled
to the privileges of prisoners of war, but shall be treated summarily
as highway robbers and pirates.
U. S. Manual, p. 130.
Acts punished as war treason.--Some of the principal acts pun-
ished as treasonable by belligerents in invaded territory, when com-
mitted by the inhabitants, are espionage, supplying information to
the enemy, damage to railways, war material, telegraphs, or other
means of communication; aiding prisoners of war to escape; con-
spiracy against the armed forces of the enemy or members thereof;
intentional misleading of troops while acting as guides; voluntary
assistance to the enemy by giving money or serving as guides; induc-
ing soldiers to serve as spies, to desert, or to surrender; bribing soldiers
48.6
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
in the interest of the enemy; damage or alteration to military notices
and signposts in the interests of the enemy; fouling sources of water
supply and concealing animals, vehicles, supplies, and fuel in the
interest of the enemy; knowingly aiding the advance or retirement of
the enemy; circulating proclamations in the interests of the enemy.
U. S. Manual, p. 131.
+
Armed prowlers.—Armed prowlers, by whatever names they may
be called, or persons of the enemy's territory, who steal within the
lines of the hostile army for the purpose of robbing, killing, or of
destroying bridges, roads, or canals, or of robbing or destroying the
mail, or of cutting the telegraph wires, are not entitled to the priv-
ileges of the prisoner of war.
U. S. Manual, p. 131 .
Marauders.-Marauders are individuals, either civilians or sol-
diers, who have left their corps, and who follow armies on the
march or appear on battlefields, either singly or in bands, in quest
of booty, and rob, maltreat, or murder stragglers and wounded, and
pillage the dead. Their acts are considered acts of illegitimate war-
fare, and the punishment is imposed in the interest of either bellig-
erent.
U. S. Manual, p. 131.
Other crimes. There are many other crimes or offenses which are
the result of war and which a belligerent may forbid and punish in
the maintenance of order and the safety of his army, such as evasion
of censorship regulations; making false claims for damage; making
false accusations against the troops; furnishing liquor to soldiers;
being in possession of animals, stores, or supplies pertaining to the
army, and, generally, neglect and disobedience of orders of the
Government, including police and sanitary regulations. All such
crimes should be defined and the liability to punishment therefor
made known to the inhabitants.
U. S. Manual, p. 132.
1
Trials.-In every case trial of individuals before military or other
courts designated by the belligerent should precede punishment.
U, S. Manual, p. 132.
Punishments.--All war crimes are subject to the death penalty,
although the fact of trial indicates that a lesser penalty may be pro-
nounced. The punishment should be deterrent, and in imposing
a sentence of imprisonment it is not necessary to take into consider-
OFFENDERS AGAINST THE LAWS OF WAR.
487
ation the end of the war, which fact does not necessarily limit the
imprisonment imposed. Any other construction of this would result
in belligerents imposing the extreme penalty of death in all cases.
U. S. Manual, p. 132.
As war is the last remedy of Governments for injuries, no means
would appear to exist for enforcing reparation for violations of the
laws of war. Practically, however, legitimate warfare is, on the
whole at least, secured through several means recognized by Inter-
national Law. Moreover, it is in the interest of a belligerent to
prevent his opponent having any justifiable occasion for complaint,
because no Power, and especially no Power engaged in a national
war, can afford to be wholly regardless of the public opinion of the
world.
These means fall into two classes according to whether or no they
fall under the category of self-help. To the one class belong: com-
plaints lodged with the enemy; complaints lodged with neutral
States; and good offices, mediation, and intervention of neutral
States. To the other class belong : punishment of war crimes com-
mitted by enemy soldiers and other enemy subjects; reprisals; and,
the taking of hostages.
Edmonds & Oppenheim, arts. 437, 438.
As diplomatic intercourse between the contending States is broken
off during war, complaints are either sent to the enemy under pro-
tection of a flag of truce, or through a neutral State which lends its
good offices. Complaints may also be lodged with neutral States,
with or without a view of soliciting their good offices, mediation, or
intervention for the purpose of making the enemy observe the laws
of war. And it may be incidentally remarked that occasionally the
foreign press is made use of for enlisting foreign public opinion
against the enemy.
Good offices and mediation by neutral States for the purpose of
settling differences are friendly acts, in contradistinction to inter-
vention which is dictatorial interference for the purpose of making
the respective belligerents comply with the laws of war.
Edmonds & Oppenheim, arts. 439, 440.
The term “ War Crime" is the technical expression for such an
act of enemy soldiers and enemy civilians as may be visited by pun-
ishment on capture of the offenders. It is usual to employ this term,
but it must be emphasized that is used in the technical military and
legal sense only, and not in the moral sense. For although some of
these acts, such as abuse of the privileges of the Red Cross badge,
488
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
or the murder of prisoners, may be disgraceful, yet others, such
as conveying information about the enemy, may be highly patriotic
and praiseworthy. The enemy, however, is in any case entitled to
punish these acts as war crimes.
War crimes may be divided into four different classes :-
(i) Violations of the recognized rules of warfare by members of
the armed forces.
(ii) Illegitimate hostilities in arms committed by individuals
who are not members of the armed forces.
(iii) Espionage and war treason.
(iv) Marauding:
The more important violations are the following: Making use of
poisoned and otherwise forbidden arms and ammunition; killing of
the wounded; refusal of quarter; treacherous request of quarter;
maltreatment of dead bodies on the battle field; ill-treatment of
prisoners of war; breaking of parole by prisoners of war; firing on
undefended localities; abuse of the flag of truce; firing on the flag
of truce; abuse of the Red Cross flag and badge, and other violations
of the Geneva convention; use of civilian clothing by troops to con-
ceal their military character during battle; bombardment of hos-
pitals and other privileged buildings; improper use of privileged
buildings for military purposes; poisoning of wells and streams;
pillage and purposeless destruction; ill-treatment of inhabitants in
occupied territory. It is important, however, to note that members
of the armed forces who commit such violations of the recognized
rules of warfare as are ordered by their Government or by their com-
mander are not war criminals and cannot therefore be punished by
the enemy. He may punish the officials or commanders responsible
for such orders if they fall into his hands, but otherwise he may only
resort to the other means of obtaining redress which are dealt with
in this chapter.
As regards illegitimate hostilities in arms on the part of private
individuals, the conditions under which such private individuals may
acquire the privileges of members of the armed forces have already
been stated. If persons take up arms and commit hostilities without
having satisfied these conditions, they are from the enemy's stand-
point guilty of illegitimate acts, and, when captured, are liable to
punishment as war criminals. If such acts are committed by the
inhabitants of a territory invaded by the enemy, the term “war re-
bellion” is usually applied.
In reference to espionage and war treason, it has already been
pointed out in the chapter on Espionage that in the Hague Rules the
word“ spy” has a technical meaning. The obtaining, supplying and
carrying of information to the enemy is not espionage, unless the
OFFENDERS AGAINST THE LAWS OF WAR.
489
individual concerned is acting clandestinely and under false pre-
tences; but it may be war treason. Thus, for instance, inhabitants
of enemy territory occupied by a belligerent who give information
to the enemy may be punished for war treason. Many other acts,
however, which may be attempted or accomplished in occupied terri-
tory, or within the enemy's lines, by private individuals or by sol-
diers in disguise, are also classed as war treason, although perfectly
legitimate if done by members of the armed forces. For instance,
damage to railways, war material, telegraphs, or other means of
communication, in the interest of the enemy; aid to enemy prisoners
of war to escape; conspiracy against the armed forces or against
members of them; intentionally misleading troops in the interest of
the enemy, when acting as guide; voluntary assistance to the enemy
to facilitate his operations, for instance: by giving supplies and
money, and acting as guides; inducing soldiers to serve as spies, to
desert, or to surrender; bribing soldiers in the interests of the enemy;
damage or alteration to military notices and signposts in the inter-
ests of the enemy; fouling water supply and concealing animals,
vehicles, supplies, and fuel in the interests of the enemy; knowingly
aiding the advance or retirement of the enemy; circulating procla-
mations in the interests of the enemy.
There are many acts likely to be committed by inhabitants which
are not violations of the laws of war, and not therefore war crimes,
but which, nevertheless, a belligerent may forbid and punish in the
interests of order and the safety of his army, such as failure to ex-
tinguish or exhibit lights at fixed hours; failure to take out a pass;
charging over regulation prices for accommodation; furnishing liquor
to soldiers; evading censorship regulations; making false accusations
against troops; making false claims for damage; being in possession
of army animals, stores or supplies; neglect or disobedience generally
of Government, police and sanitary regulations.
It is advisable that the inhabitants should be informed directly
occupation has taken place of their duty to maintain order, to respect
the commands of the occupant and, particularly, to desist from acts
especially forbidden.
The fourth class of war criminals consists of marauders. These are
individuals either civilians or soldiers who have left their corps, who
follow armies on the march or appear on battle fields, either singly or
in bands, in quest of booty, and rob, maltreat, or murder stragglers
and wounded, and pillage the dead. Their presence, besides being a
menace and danger to the belligerent they accompany, may lead to
aspersions on the conduct of his army, by his adversary. Their acts
are considered acts of illegitimate warfare, and the punishment takes
place in the interest of either belligerent.
110678-19
1
4
-32
490
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Charges of war crimes may be dealt with by military courts or by
such courts as the belligerent concerned may determine. In every
case, however, there must be a trial before punishment, and the ut-
most care must be taken to confine the punishment to the actual
offender.
All war crimes are liable to be punished by death, but a more leni-
ent penalty may be pronounced. Corporal punishment is excluded
and cruelty in any form must be avoided. The punishment should
be deterrent, but great severity may defeat its own ends by driving
the population to rebellion.
In pronouncing a sentence of imprisonment it need not be taken
into consideration whether there is a probability of the prisoner being
released at the end of the war. There is no right to claim release
and it would not be in the interests of humanity to grant such right,
for otherwise belligerents would be forced to carry out capital pun-
ishment in many more cases than is now usually necessary.
Edmonds & Oppenheim, arts. 441–451.
RETALIATION, OR REPRISALS.
Reprisals are an exception to the general rule of equity, that an in-
nocent person ought not to suffer for the guilty. They are also at
variance with the rule that each belligerent should conform to the
rules of war, without reciprocity on the part of the enemy. This
necessary rigor, however, is modified to some extent by the following
restrictions:
ARTICLE 85. Reprisals are formally prohibited in case the injury
complained of has been repaired.
ARTICLE 86. In grare cases in which reprisals appear to be abso-
lutely necessary, their nature and scope shall never exceed the meas-
ure of the infraction of the laws of war committed by the enemy.
They can only be resorted to with the authorization of the com-
mander in chief.
They must conform in all cases to the laws of humanity and
morality.
Institute (1880), p. 42.
Privateering.
ARTICLE 3. The arning of privateers is still permitted as a method
of reprisal against belligerents which do not respect the principle
contained in Article 2 (forbidding privateering]. In this case it is
forbidden to give conimissions to foreigners.
Institute (1883), p. 46.
ARTICLE 4. Cases of reprisal and retorsion are not subject to the
following rules [relative to the admission and expulsion of aliens].
However, aliens domiciled in a country with the express authority
of the government may not be expelled on the ground of reprisal
or retorsion.
Institute (1892), p. 105.
Letters of marque and reprisal.
Reprisals by commission, or letters of marque and reprisal, granted
to one or more injured subjects, in the name and by the authority of
a sovereign, is another mode of redress for some specific injury, which
is considered to be compatible with a state of peace, and permitted
by the law of nations. The case arises when one nation has committed
some direct and palpable injury to another, as by withholding a just
debt, or by violence to person or property, and has refused to give
491
492
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
any satisfaction. The reprisals may be made in support of the rights
of a subject as well as those of the sovereign and for the acts of the
subject as well as for those of the sovereign. The commission is not
to be issued except in a case clearly just-in re minime dubia; and it
authorizes the seizure of the property of the subjects as well as of the
sovereign of the offending nation, and to bring it in to be detained as
a pledge or disposed of under judicial sanction, in like manner as
if it were a process of distress under national authority for some debt
or duty withheld. These letters of reprisal, as being applicable to a
state of peace, have been frequently recognized and regulated by
treaty. The French ordinance of the marine of 1681 regulates mi-
nutely this remedial process, and the judicial sanction requisite to
the proceedings under letters of reprisal, and which Valin considers
to be sage precautions, proper to temper the rigor of this perilous
mode of redress. General reprisals upon the persons and property
of the subjects of another power are equivalent to open war; but these
special letters of marque and reprisal, limited to a specific object, are
spoken of generally, and even in the articles of confederation of the
United States, in 1781, as issuing “in times of peace.” They are,
however, regarded by Barbeyrac, Emerigon, and other publicists as a
species of hostility, an imperfect war, and usually a prelude to open
hostilities. The favorable or adverse issue of the hazardous experi-
ment will depend, in some degree, upon the matter in demand, and,
in a much greater degree, upon the relative situation, character,
strength, and spirit of the nations concerned.
Kent, vol. I, p. 73.
Law of retaliation.
Cruelty to prisoners, and barbarous destruction of private prop-
erty, will provoke the enemy to severe retaliation upon the innocent.
Retaliation is said by Rutherforth not to be a justifiable cause for
putting innocent prisoners or hostages to death; for no individual is
chargeable, by the law of nations, with the guilt of a personal crime,
merely because the community of which he is a member is guilty.
He is only responsible as a member of the state, in his property, for
reparation in damages for the acts of others; and it is on this princi-
ple that, by the law of nations, private property may be taken and
appropriated in war. Retaliation, to be just, ought to be confined to
the guilty individuals, who may have committed some enormous vio-
lation of public law. On this subject of retaliation Professor
Martens is not so strict. While he admits that the life of an innocent
man cannot be taken, unless in extraordinary cases, he declares that
cases will sometimes occur, when the established usages of war are
violated, and there are no other means, except the influence of retalia-
RETALIATION OR REPRISALS.
493
tion, of restraining the enemy from further excesses. Vattel speaks
of retaliation as a sad extremity, and it is frequently threatened
without being put in execution, and probably without the intention
to do it, and in hopes that fear will operate to restrain the enemy.
Instances of resolutions to retaliate on innocent prisoners of war oc-
curred in this country during the Revolutionary war, as well as dur-
ing the war of 1812; but there was no instance in which retaliation,
beyond the measure of severe confinement, took place in respect to
prisoners of war.
Kent, vol. I, pp. 108, 109.
Retaliation, or, as it is sometimes called, vindictive retaliation, or
retorsio facti, is where one state seeks to make another, or its citizens,
suffer the same amount of evil which the latter has inflicted upon the
former. Retaliation should be limited to such punishments as may
be requisite for our own safety and the good of society; beyond this
it cannot be justified. We have no right to mutilate the ambassador
of a barbarous power, because his sovereign has treated our ambassa-
dor in that manner, nor put prisoners and hostages to death, and to
destroy private property, merely because our enemy has done this to
us; for no individual is justly chargeable with the guilt of a per-
sonal crime for the acts of the community of which he is a member.
Retaliation of this kind should be confined, as a general rule, to the
individuals who have committed the violation of public law. There
may be extraordinary cases which constitute an exception to this
rule, but these must be judged according to the peculiar circumstances
by which they are attended. “Instances of resolutions to retaliate on
innocent prisoners of war," says Kent, “ occurred in this country
during the revolutionary war, as well as during that of 1812; but
there was no instance in which retaliation, beyond the measure of
secure confinement, took place in respect to prisoners of war.” Vin-
dictive retaliation is sometimes applied to the property of the offend-
ing state or individual, but such acts are usually of a belligerent char-
acter, and will be discussed in another place. (Rutherforth, Insti-
tutes, b. 2, ch. 9, § 15; Martens, Precis du Droit des Gens, $ 258, note;
Kent, Com. on Amer. Law, vol. 1, pp. 93–94; Journals of Congress
under the Confed., vol. 2, p. 245; vol. 7, pp. 9–147; vol. 8, p. 10;
President's Messages, Dec. 7th, 1813, and Oct. 28th, 1814; Vattel,
Droit des Gens, liv. 2, ch. 18, § 339; Manning, Law of Nations, p. 105;
Ortolan, Diplomatie de la Mer, liv. 1, ch. 16; Garden, De Diplomatie,
liv. 6, § 3; Rayneval, Inst. du Droit Nat., liv. 2, ch. 12; Kluber, Droit
des Gens Mod., § 234; Heffter, Droit International, $$ 110, 111;
Bello, Derecho Internacional, pt. 1, cap. 11, $ 3.)
Halleck, pp. 296, 297.
ܪ
494
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Debt due from sovereign to individuals.
In the argument of the English civilians against the reprisals made
by the King of Prussia in that case [of the Silesian loan], on account
of the capture of Prussian vessels by the cruisers of Great Britain, it
is stated that“ it would not be easy to find an instance where a prince
had thought fit to make reprisals upon a debt due from himself to
private men. There is a confidence that this will not be done. A pri-
vate man lends money to a prince upon an engagement of honor;
because a prince cannot be compelled, like other men, by a court of
justice. So scrupulously did England and France adhere to this pub-
lic faith, that even during the war," (alluding to the war terminated
by the peace of Aix-la-Chapelle,)“ they suffered no injury to be made
whether any part of the public debt was due to the subjects of the
enemy, though it is certain many English had money in the French
funds, and many French had money in ours.”
Wheaton, p. 379 ; Letters of Camillus, by Alexander Hamilton, Vo. 20.
Subjects of reprisals.
Grotius, in the second chapter of his third book, where he is treat-
ing of the liability of the property of subjects for the injuries com-
mitted by the State to other communities, lays down that "by the law
of nations, all the subjects of the offending State, who are such from
a permanent cause, whether natives or emigrants from another coun-
try, are liable to reprisals, but not so those who are only traveling or
sojourning for a little time;--for reprisals,” says he, “have been
introduced as a species of charge imposed in order to pay the debts of
the public; from which are exempt those who are only temporarily
subject to the laws. Ambassadors and their goods are, however, ex-
cepted from this liability of subjects, but not those sent to an enemy.
In the fourth chapter of the same book, where he is treating of the
right of killing and doing other bodily harm to enemies, in what he
calls solemn war, he holds that this right extends, “not only to those
who bear arms or are subjects of the author of the war, but to all those
who are found within the enemy's territory. In fact, as we have rea-
son to fear the hostile intentions even of strangers who are within the
enemy's territory at the time, that is sufficient to render the right of
which we are speaking applicable even to them in a general war. In
which respect there is a distinction between war and reprisals, which
last, as we have seen, are a kind of contribution paid by the subjects
for the debts of the State."
Barbeyrac, in a note collating these passages, observes, that "the
late M. Cocceius, in a dissertation which I have already cited, De Jure
Belli in Amicos, rejects this distinction, and insists that even those
foreigners who have not been allowed time to retire ought to be con-
sidered as adhering to the enemy, and for that reason justly exposed
RETALIATION OR REPRISALS.
495
to acts of hostility. In order to supply this pretended defect, he after-
wards distinguishes foreigners who remain in this country, from those
who only transiently pass through it, and are constrained by sickness
or the necessity of their affairs. But this is alone sufficient to show
that, in this place, as in many others, he criticised our author without
understanding him. In the following paragraph, Grotius manifestly
distinguishes from the foreigners of whom he has just spoken those
who are permanent subjects of the enemy, by whom he doubtless un-
derstands, as the learned Gronovius has already explained, those who
are domiciled in the country. Our author explains his own meaning
in the second chapter of this book, in speaking of reprisals, which he
allows against this species of foreigners, whilst he does not grant them
against those who only pass through the country, or are temporarily
resident in it."
Whatever may be the extent of the claims of a man's native country
upon his political allegiance, there can be no doubt that the natural-
born subject of one country may become the citizen of another, in time
of peace, for the purposes of trade, and may become entitled to all the
commercial privileges attached to his required domicil. On the other
hand, if war breaks out between his adopted country and his native
country, or any other, his property becomes liable to reprisals in the
same manner as the effects of those who owe a permanent allegiance to
the enemy State.
Wheaton, pp. 403-405 ; Grotius, par Barbeyrac, in loc.
Causes of reprisals.
Reprisals may be undertaken on account of any injury, but are
chiefly confined to cases of refusal or even obstinate delay of justice.
Grotius adds that they are authorized, “if in a very clear case judg-
ment be given plainly against right.” (iii., 2, § 5, 1.) But this is an
unsafe opinion, and to be acted upon only in an extreme case, for the
sentence of a regular tribunal will always be supported by some
plausible, if not valid reason; there should be the fullest proof of an
intention to deny or to overturn justice.
Woolsey, n. 182.
When admissible.
That retaliation in war is sometimes admissible all agree: thus
if one belligerent treats prisoners of war harshly, the other may do
the same; or if one squeezes the expenses of war out of an invaded
territory, the other may follow in his steps. It thus becomes a meas-
ure of self-protection, and secures the greatest amount of humanity
from un feeling military officers. But there is a limit to the rule. If
one general kills in cold blood some hundreds of prisoners who em-
barrass his motions, his antagonist may not be justified in staining
496
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
himself by similar crime, nor may he break his word or oath because
the other had done so before. The limits of such retaliation it may
be hard to lay down. In the case of Captain Asgill, a prisoner drawn
in order to retaliate for the killing of Captain Huddy, Washington
had military right on his side. Asgill, however, was finally set free.
Yet any act of cruelty to the innocent, any act, especially, by which
non-combatants are made to feel the stress of war, is what brave men
shrink from, although they may feel obliged to threaten it. (Comp.
$ 118, and the instructions for the government of our armies,
SS 27, 28.
Woolsey, p. 211.
In 1870 Count Bismarck denied that sailors found in merchant
vessels can be made prisoners of war, and in a note addressed to the
Government of the National Defence threatened to use reprisals if
those who had been captured were not liberated.
Count Bismarck executed his threat to use reprisals, and
sent Frenchmen of local importance as prisoners to Bremen in a
number equal to that of the captains of merchantmen who were de-
tained in France.
Hall, p. 421, note.
Reprisal, or the punishment of one man for the acts of another,
is a measure in itself so repugnant to justice, and when hasty or
excessive is so apt to increase rather than abate the irregularities of
a war, that belligerents are universally considered to be bound not to
resort to reprisals except under the pressure of absolute necessity,
and then not by way of revenge, but only in cases and to the extent
by which an enemy may be deterred from a repetition of his offence.
Hall, p. 432.
reprisals need not be confined to acts identical with those
which have called them forth.
Hall, p. 556.
When the actual offenders cannot be reached or identified, resort
is sometimes had to measures of “Reprisals” or “Retaliation ", by
which persons guilty of no offence may suffer for the acts of others.
Since, however, the permissibility of such measures is a painful ex-
ception to the rule that a belligerent must observe the laws of war,
even without reciprocity on the part of the enemy, Reprisals must be
sparingly exercised, and then not by way of vengeance, but solely in
order to prevent a repetition of the offence complained of.
Holland, p. 60.
RETALIATION OR REPRISALS.
497
Reprisals need not resemble in character the offence complained of.
They may be exercised against persons or property. Only in extreme
-cases have prisoners of war been executed by way of reprisal; but the
destruction of villages, houses, &c., on account of offences committed
in them, or in their neighbourhood, has not been uncommon. Such
destruction is not to be confused with that which is occasionally
necessary for strategic reasons. Cf. supra, Arts. 3 and 76.
Holland, p. 60, 61.
Restrictions.
Reprisals: must be exercised only subject to the following restric-
tions:
1. The offence in question must have been carefully inquired into.
2. Redress for the wrong, or punishment of the real offender, must
be unattainable.
3. The Reprisals must be authorized, unless under very special cir-
cumstances, by the Commander-in-Chief.
4. They must not be disproportioned to the offence, and must in no
case be of a barbarous character.
Holland, p. 61.
I
Written rules lacking.
This article is intended to represent prevalent authoritative opin-
ion upon this subject, as to which as yet no written rules have been
adopted by international consent. The Projet of a Convention on
the laws of war, submitted by Russia to the Brussels Conference of
1874, suggested the following articles :-69. “Reprisals are only ad-
mitted in extreme cases, regard being paid, as far as possible, to
the laws of humanity, when it shall have been established beyond
question that the laws and customs of war have been violated by
the enemy, and that he has resorted to measures condemned by the
Law of Nations.” 70. “ The choice of the means and the extent of
reprisals should be proportioned to the gravity of the infraction of
law perpetrated by the enemy. Reprisals which are dispropor-
tionately severe are contrary to the rules of the Law of Nations."
71. “Reprisals shall be allowed only on the authority of the Com-
mander-in-Chief, who must also determine the degree of their se-
verity and their duration.” (See Parl. Paper, Miscell. No. 1, 1874,
p. 11.) The Conference, however, largely in deference to Belgian
representations, declined to seem to add to the authority for a prac-
tice so repulsive, although, under certain circumstances, unavoidable,
by legislating on the subject. The attempt to regulate the practice
has not been renewed at the Hague Conferences of 1899 or 1907.
Holland, p. 61.
999
498
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The third method of securing compliance with the laws of war is a
method to be adopted only in the last resort. Reprisals are a survival
of the lex talionis—an eye for an eye, a limb for a limb, a life for a life.
They are the very saddest of all the necessities of war. “History,
says Professor De Martens, “abounds in numberless examples of the
most atrocious cruelties committed under the pretext of reprisals.
Yet one cannot see how they can be entirely done away with. When
the question of reprisals was discussed at Brussels, Baron Lamber-
mont of Belgium, whose proposal to “sacrifice” the proposed Article
“on the altar of humanity" was unanimously accepted by the com-
mittee, pointed out that whatever care were taken to soften the law
as to reprisals, the principle—an odious one--would still remain.
The enormous difficulty of the subject-one bearing upon the mitiga-
tion of the evils of war as much as any subject possibly can-may be
judged from the fact that the Brussels Conference shrank from leg-
islating for it and that the two Hague Conferences have not touched
the question at all. At Brussels it was felt that “occasions on which
reprisals of a severe character had been executed were of far too recent
a date to allow the practice to be discussed calmly.” But no such ob-
jection to its being discussed existed in 1899 or in 1907. The words
which Baron Jomini used at Brussels are both true and noteworthy,
though one may doubt whether the suppression of all reference to the
subject is likely to have such a “serious moral bearing”-such a de-
terrent effect upon resort to the practice--as he anticipated. The
necessity for resorting to reprisals is recognized in all the service
manuals; the only effect of the suppression of the Brussels Article has
been that each manual gives its own rules instead of a universally-
binding, stereotyped set. Baron Jomini's words were:
I regret that the uncertainty of silence is to prevail with respect to one of the
most bitter necessities of war. If the practice could be suppressed by this
l'eticence I could but approve of this course. But if it is still to exist this.
reticence may, it is to be feared, remove any limits to its exercise. Nevertheless,
,
I believe that the mere mention in the Protocol that the Committee, after having.
endeavored to regulate, to soften, and to restrain reprisals, has shrunk from
the task before the general repugnance felt with regard to the subject, will have
a most serious moral bearing. It will, perhaps, be the best limitation we have
been able to affix to the practice, and especially to the use which may he made
of it, in future.
Spaight, pp. 462–464; De Martens, p. 423; Brussels B. B. p. 178.
The rules drawn up by the Institute of International Law and given
in the Oxford Manual (Articles 85 and 86) may be regarded as the
most authoritative expression of the International Law as to reprisals;
they are the “common denominator," as it were, of the rules on the
subject given in the various army manuals.
Spaight, p. 464; see above.
RETALIATION OR REPRISALS.
499
Responsible officers.
Another rule, the justice of which is evident, is suggested by Pro-
fessor De Martens: viz., that if it is impossible to punish the actual
culprits, reprisals ought in the first instance to be inflicted upon the
commanders and officers of the enemy's troops.
Spaight, p. 464; De Martens, p. 428.
Character of reprisals.
There is nothing to prevent the act of reprisals differing from that
complained of. “ Circumstances do not always allow of replying
to an infraction by an identical infraction, and it is well, too, to
have the power to limit oneself, on occasion, to measures of reprisal
less grave and therefore different.” “Reprisals need not resemble
in character the offence complained of. They may be exercised
against persons or property.” Either combatants or non-combatants
may be the victims of reprisals. One finds instances in the Secession
and Franco-German Wars of reprisals being exercised or threatened
against prisoners of war. M. Paul Caſpentier holds that to execute
prisoners is to break the quasi-contract made with them when they
agreed to surrender; but most jurists would, like Professor Pillet,
give the captor the power to adopt such a measure in very extreme
cases. The German manual sanctions the killing of prisoners in un-
avoidable cases of urgent necessity. “Every prisoner of war," says
Article 59 of the American Instructions, is liable to punishment
inflicted by way of reprisals.” “When the infraction complained of,"
says M. Bonfils, "emanates from soldiers, it is on soldiers especially
that reprisals must be inflicted”; and the right to inflict reprisals--
to retaliate must entail the right to execute in very extreme cases.
Otherwise there would be no effective means of checking the enemy's
very worst excesses.
Spaight, pp. 464, 465; French Manuel à l'Usage, p. 26; British Manual,
p. 46, Holland's note; Carpentier, pp. 176, 177 ; Pillet, p. 149; Kreigs-
brauch im Landkriege, p. 163; Bonfils, sec. 1024.
1
Non-combatants.
As to non-combatants there is a difference of opinion. Some
writers, like MM. Bonfils and Pillet, would deny commanders any
war right of inflicting reprisals on peaceable citizens. But practice
is all against their view. Every war has seen reprisals inflicted upon
citizens, whether by way of the destruction of their property, the
exaction of fines, or the seizure of their persons. In many wars
their lives have been endangered through their being held account-
able for acts committed by others.
Spaight. 1). 465.
500
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
:
War's.
Hostages.
ind this brings me to the difficult question of hostages--a question
which has assumed a great magnitude and importance in modern
As I have said before, it is usual for an occupant to take
hostages to secure compliance with his requisitions or as security for
the good behavior of the inhabitants of an occupied town. In the
Secession War the Confederates carried off a number of unoffending
citizens of Maryland and Pennsylvania and detained them in the
South until the end of the war; their object being to hold them as
security against the arrest or ill-treatment by the Union Government
of the Secession sympathizers—the “copperheads," as they were
called-resident in the North. Again, in 1870, the Germans seized
as hostages forty notable inhabitants of Dijon, Gray, and Vesoul, in
retaliation for the decision of the French Government to treat the
crews of German merchantmen as prisoners of war, a decision which
Germany held to be contrary to International Law but which has the
support of practically all jurists. The seizure in these cases was, in
itself, a reprisal. But one sees the principle of retaliating upon non-
combatants more clearly in another class of cases illustrated by events
of the two wars just referred to, as well as of the Anglo-Boer War.
The kind of case I mean is where a non-combatant is exposed to
danger of life or limb with the object of preventing the enemy (active
or passive) resorting to certain acts which the other belligerent con
siders illegitimate. As I have shown in an earlier chapter, the Fed-
eral Commanders of 1861-5 regarded the use of land mines or "tor-
pecoes as illegitimate in certain circumstances. Sherman ordered
that, in such a case, the suspected place should be tested by a car-load
of prisoners, or of citizens implicated, being drawn over it by a long
l'ope. This system of prophylactic reprisals” appears to have at-
tracted no special attention until the Franco-Prussian War. It was
in that war that it became one of the burning questions of modern
war law. The attempts to wreck the trains in Alsace and other occu-
pied districts in France became so frequent that, to stop them, the
German authorities issued an order that the trains should be accom-
panied by inhabitants who are well known and generally respected,
and who shall be placed upon the locomotive, so that it may be
made known that every accident caused by the hostility of the in-
habitants will, in the first place, injure their countrymen.
At Nancy the first hostage was the venerable President of the
Court of Appeal, M. Leclair; another notable citizen who was “in-
vited" to go traveling was Procureur General Isard, who, escorted
by two Prussian gendarmes, had to mount the tender and travel to
Luneville, where his colleague in that town took his place. The
President of the Chamber of Commerce, a judge, and a barrister,
occupied the post of danger on other occasions. The German prac-
RETALIATION OR REPRISALS.
501
tice was revived by Great Britain in the South African war. I have
already quoted the Proclamation issued by Lord Roberts on the sub-
ject. The Proclamation was soon repealed—by Proclamation No. 9 of
27th July, 1900—but the practice continued. One finds Mr. Brod-
rick, Secretary for War, upholding the legitimacy of the practice in
the House of Commons as late as 26th March, 1902. Mr. Bryce had
declared that the practice is contrary to the Hague Convention
[Règlement] and contrary to the general usages of civilized warfare.
(Several hon. members: No, no.) Unquestionably. The only par-
allel I can find for it is the case which occurred in the Franco-Prus-
sian War of 1870, under somewhat different circumstances.
Mr. Brodrick replied that Mr. Bryce's view was not that held by
those who advised the Government in this matter, and he declared
that there was another precedent for the practice than that of the
War of 1870–1, which, however, he declined to name, “because of
the susceptibilities which are aroused by statements of this kind in
this House.” “I should not have far to go," he said, “to look for
another example which would amply justify us in the course Lord
Kitchener thought it necessary to take." He was referring, I think,
to the cases in the Secession War, in which the principle was the
same though the circumstances were somewhat different. But, in-
deed, he might have quoted the Boers themselves as his authority
for practices of the kind, if the legality of the thing was to be de-
cided by precedents and not on the higher ground that “right is
right.” When the Boers approached Aliwal North in November,
1899, before crossing the Orange River, they “sent a messenger to
fetch Mr. Hugo, the magistrate, and ordered him to stand on the
middle of the bridge with his assistant and chief constable, while the
commando crossed, as a precaution in case the bridge might be
mined.” This was a perfectly clear case of “prophylactic repris-
als "; the enemy non-combatants were placed in the post of danger,
not on a locomotive, but on a bridge, as a kind of security against
what was regarded as an illegitimate act on the enemy's part.
Spaight, pp. 465–468; Proclamations of Lord Roberts (Cd. 426), p. 12;
Wyman's Army Debates, Session 1902, Vol. II, pp. 196, 200; Times
History South African War, Vol. II, p. 292.
Hostạges.
The practice of war, then, may be affirmed as good evidence in
favor of this usage of exposing civilian hostages to danger by way
of preventive retaliation. What about theory and abstract justice?
Theory has condemned the practice almost unanimously. “Their
proceedings," says Professor Pillet, referring to the German prac-
tice, "resemble that of the mutineers who place women and children
in the first rank, hoping that the troops will not dare to fire upon
502
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
them. Fighting ought to be confined to soldiers, and there is little
military virtue in making use of non-combatants as a shield against
the enterprises of the enemy."
“It would not be more unjust,” says
Professor Westlake, "if cilivians of the enemy State were placed in
the front of battle in order to induce the enemy's troops to withhold
their fire." The German Official Manual admits that the method
adopted to stop train wrecking in 1870–1 was a cruel one, but justifies
it on the ground that it was completely successful in its object, no
accidents occurring to trains which carried notables, whereas all
previous attempts to prevent “the undoubtedly irregular, even crim-
inal, conduct of a fanatical population" had ended in failure. Both
of the views I have presented—Professors Westlake's and Pillet's
the general view on the one side, the German official jurist's on the
other--appear to me to miss the true solution of this difficulty, and to
miss it, too, for the same reason in each case. Both views, that is to
say, are too absolute, general, and dogmatic; both fail to take account
of the varying circumstances in which the practice in question may
be resorted to. Mr. Bryce, too, spoke beside the point, I think, when
he described the practice as contrary to the convention and usage of
war. For the whole question of hostages is bound up with the ques-
tion of reprisals, and reprisals have not been legislated for, nor is
there any universal usage which would warrant one in saying that
"prophylactic reprisals” of the kind I am dealing with are banned
by customary war law. If reprisals are legitimate at all and if they
may be inflicted upon a civil population, then to retaliate as far as
possible in kind is proper and equitable. But reprisals can only be
inflicted for a violation of the laws of war. They must not be
inflicted to prevent the enemy carrying out a proper act of hostili-
ties. Now, as I have shown in Chapter IV, railway wrecking is,
generally speaking, a perfectly legitimate act of war, but it must, like
any other such act, be carried out by the enemy's proper agents of
war-his combatant troops. If a non-combatant interferes with a
railway line, he lays himself open to extreme and summary punish-
ment. It is quite fitting that he should be the first to suffer for such
interference, or (reprisals being allowed) for any interference effected
by other non-combatants. If, therefore, one confines one's remarks to
a district in which there is no possibility of the damage done to the
line having been effected by the enemy's raiding parties or in which
such raiding parties could not achieve their purpose without the
inhabitants' assistance or connivance, I hold that no objection arises
under the laws and customs of war to the carrying of hostages on
trains. To compare the measure to placing women and children in
the forefront of a battle is to confuse the issue; for to expose women
and children in such a way is to seek to prevent the enemy doing what
he has a perfect right to do, while carrying hostages on a train, under
RETALIATION OR REPRISALS.
503
the restricted conditions I refer to, is to seek to prevent non-combat-
ants meddling treacherously in hostilities and thereby violating war
law. As I have said in Chapter IV, there was little substantial rea-
son for assuming that the railway lines in the occupied parts of
France in 1870-1 could not have been injured without the help or
connivance of the inhabitants and still less reason for this assumption
in the case of the Boer Republics. Therefore, so far as the question of
the right or wrong of the practice adopted in these two wars is con-
cerned, I agree with the majority of writers in casting my vote against
it-the conditions which would have legalized it not being proved to
have been in existence. But that is not to say that it would not have
been proper and justifiable under circumstances not so very dissimilar
from those in which it was actually resorted to.
Spaight, pr. 468–470; Pillet, n. 213; Westlake, vol. 2, p. 102; Kriegs-
brauch im Landkriege, pp. 49, 50.
Whereas reprisals in time of peace are to be distinguished from
retorsion and are injurious acts committed for the purpose of com-
pelling a State to consent to a satisfactory settlement of a difference
created through an international delinquency, reprisals between bel-
ligerents are retaliation of an illegitimate act of warfare, whether
constituting an international delinquency or not, for the purpose of
making the enemy comply in future with the rules of legitimate war-
fare. Reprisals between belligerents are terrible means, because they
are in most cases directed against innocent enemy individuals, who
must suffer for real or alleged offences for which they are not re-
sponsible. But reprisals cannot be dispensed with, because without
them illegitimate acts of warfare would be innumerable. As matters
stand, every belligerent and every member of his forces knows for
certain that reprisals are to be expected in case they violate the rules
of legitimate warfare. And when nevertheless an illegal act occurs
and is promptly met with reprisals as a retaliation, human nature
would not be what it is if such retaliation did not act as a deterrent
against a repetition of illegitimate acts.
Oppenheim, vol. 2, p. 305.
When reprisals admissible.
Whereas reprisals in time of peace are admissible for international
delinquencies only, reprisals between belligerents are at once admis-
sible for every and any act of illegitimate warfare, whether the act
constitutes an international delinquency or not. It is for the consid-
eration of the injured belligerent as to whether he will at once resort
to reprisals, or, before doing so, will lodge complaints with the enemy
or with neutral States. Practically, however, a belligerent will rarely
resort at once to reprisals, provided the violation of the rules of legiti-
mate warfare is not very grave and the safety of his troops does not
504
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
require prompt and drastic measures. Thus, the Germans during the
Franco-German War frequently by way of reprisal, bombarded and
fired undefended open villages where their soldiers were treacherously
killed by enemy individuals in ambush who did not belong to the
armed forces. And Lord Roberts, during the South African War,
ordered by way of reprisal the destruction of houses and farms in
the vicinity of the place where damage was done to the lines of com-
munication.
Oppenheim, vol. 2, pp. 305, 306.
Danger of arbitrariness.
The right to exercise reprisals carries with it great danger of arbi-
trariness, for often the alleged facts which make belligerents resort to
reprisals are not sufficiently verified, or the rules of war which they
consider the enemy has violated are sometimes not generally recog-
nised, or the act of reprisal performed is often excessive compared
with the precedent act of illegitimate warfare. Three cases may
illustrate this danger.
(1) In 1782 Joshua Huddy, a captain in the army of the American
insurgents, was taken prisoner by loyalists and handed over to a
Captain Lippencott for the ostensible purpose of being exchanged,
but was arbitrarily hanged. The commander of the British troops
had Lippencott arrested, and ordered him to be tried for murder.
Lippencott was, however, acquitted by the court-martial, as there was
evidence to show that his command to execute Huddy was in ac-
cordance with orders of a Board which he was bound to obey. There-
upon some British officers who were prisoners of war in the hands of
the Americans were directed to cast lots to determine who should be
executed by way of reprisal for the execution of Huddy. The lot fell
on Captain Asgill, a young officer only nineteen years old, and he
uld have been executed but for the mediation of the Queen of
France, who saved his life.
(2) “The British Government, having sent to England, early in
1813, to be tried for treason, twenty-three Irishmen, naturalised in the
United States, who had been captured on vessels of the United States,
Congress authorised the President to retaliate. Under this act, Gen-
eral Dearborn placed in close confinement twenty-three prisoners
taken at Fort George. General Prevost, under express directions of
Lord Bathurst, ordered the close imprisonment of double the number
of commissioned and non-commissioned United States' officers. This
was followed by a threat of unmitigated severity against the Ameri-
can citizens and villages' in case the system of retaliation was pur-
sued. Mr. Madison having retorted by putting in confinement a
similar number of British officers taken by the United States, General
RETALIATION OR REPRISALS.
505
1
Prevost immediately retorted by subjecting to the same discipline
all his prisoners whatsoever. ... A better temper, however, soon
came over the British Government, by whom this system had been
instituted. A party of United States' officers, who were prisoners of
war in England, were released on parole, with instructions to state to
the President that the twenty-three prisoners who had been charged
with treason in England had not been tried, but remained on the usual
basis of prisoners of war. This led to the dismissal on parole of all
the officers of both sides."
(3) During the Franco-German War the French had captured
forty German merchantmen, and made their captains and crews
prisoners of war. Count Bismarck, who considered it against Inter-
national Law to detain these men as prisoners, demanded their libera-
tion, and when the French refused this, ordered by way of reprisal
forty French private individuals of local importance to be arrestedi
and to be sent as prisoners of war to Bremen, where they were kept
until the end of the war. Count Bismarck was decidedly wrong, since
France had, as the law then stood, in no way committed an illegal act
by detaining the German crews as prisoners of war.
Oppenheim, vol. 2, pp. 306-308.
1
1
Proposed restriction of reprisals.
The Hague Regulations do not mention reprisals at all because the
Brussels Conference of 1874, which accepted the unratified Brussels
Declaration, had struck out several sections of the Russian draft code
regarding reprisals. These original sections (69–71) stipulated-(1)
that reprisals should be admitted only in extreme cases of absolutely
certain violations of the rules of legitimate warfare; (2) that the
acts performed by way of reprisal must not be excessive, but in pro-
portion to the respective violation; (3) that reprisals should be
ordered by commanders-in-chief only. Articles 85 and 86 of the
Manual of the Laws of War, adopted by the Institute of International
Law, propose the following rules :-(1) Reprisals are to be prohibited
in case reparation is given for the damage done by an illegal act; (2)
in grave cases, in which reprisals are an imperative necessity, they
must never exceed the degree of the violation committed by the
enemy; (3) they may only be resorted to with the authorization of the
commander-in-chief; (4) they must in every case respect the laws of
humanity and of morality. In face of the arbitrariness with which,
according to the present state of International Law, reprisals may be
exercised, it cannot be denied that an agreement upon some precise
rules regarding reprisals is an imperative necessity.
Oppenheim, vol. 2, pp. 308, 309.
1 Wharton's Digest, iii, sec. 348 B.
110678—19-33
506
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The next question is one which concerns every possible body of
laws of war, whether enacted by convention or resting on the consent
of opinion, as well as the Hague Regulations, namely, does it exclude
the breach of any law comprised in that body by way of reprisal or re-
torsion for a breach by the other side? And if the answer is negative,
then is the permitted reprisal retorsion limited to one of the same.
law which was broken by the other side? Universal practice and
consent have given negative answers to both these questions. To the
further question, whether any limit at all can be put to breaches of
laws of war by way of reprisal, the following answer with reference to
land war was given by the Russian draft which formed the base of the
discussions at Brussels.
69. Reprisals are admissible in extreme cases only, due regard being paid as
far as shall be possible to the laws of humanity, when it shall have been un-
questionably proved that the laws and customs of war have been violated by
the enemy, and that they have had recourse to measures condemned by the
law of nations.
70. The selection of the means and extent of reprisals should be proportionate
to the degree of the infraction of law committed by the enemy. Reprisals that
are disproportionately severe are contrary to the rules of international law.
71. Reprisals shall be allowed only on the authority of the commander-in-chief,
who shall likewise determine the degree of their severity and their duration.
But the conference felt itself compelled to decline to discuss even
these moderate propositions, among the reasons given by General
Horsford in his report being that "it seemed to be the general feeling
that occasions on which reprisals of a severe character had been
executed were of far too recent a date to allow the practice to be
discussed calmly.” Thus neither the Brussels nor the Hague Regula-
tions contain anything on the subject, and so far as the latter are con-
cerned reprisal forms one of the cases not included in them which
they expressly leave to humanity and conscience: we cannot apply to
this particular case the reference to “the usages established between
civilized nations," because what occurred at Brussels proves that no
usages on it are established in the sense of being not merely practised
but approved with sufficient definition. But the Manual of the Insti-
tute of International Law has the following articles, which carry the
matter very little further than the Russian propositions at Brussels.
85. Reprisals are forbidden whenever the wrong which has afforded ground
of complaint has been repaired.
86. In the grave cases in which reprisals become an imperative necessity,
their nature and scope must never exceed the measure of the infraction of the
laws of war committed by the enemy.
They can only be made with the authorisation of the commander-in-chief.
They must in all cases be consistent with the rules of humanity and morality.
It will be observed that in the last clause "in all cases” replaced the
Russian "as far as shall be possible," and that Art. 85 was new.
RETALIATION OR REPRISALS.
507
It is probably impossible to say more on the subject in general terms,
and with regard to its total omission in the official codes we will
associate ourselves with what the Russian delegate, General Jomini,
said at Brussels. “I regret that the uncertainty of silence is to pre-
vail with respect to one of the most bitter necessities of war. If
the practice could be suppressed by this reticence, I could but ap-
prove of this course. But if it is still to exist this reticence may, it is
to be feared, remove any limits to its exercise. Nevertheless, I be-
lieve that the mere mention in the protocol that the committee, after
having endeavoured to regulate, to soften and to restrain reprisals,
has shrunk from the task before the general repugnance felt with
regard to the subject, will have a most serious moral bearing. It
will perhaps be the best limitation we have been able to affix to the
practice, and especially to the use which may be made of it in future.”
The difficulty of obtaining a more precise definition of the right
of reprisal in war call for a jealous examination of the principle on
which it rests, in order that no false theoretical view may assist the
tendency to excess in practice which results from human nature and
is seen in experience. The principle is thus put by Lueder.
“The right not to observe the laws of war exists in the case of retorsion
because, according to known maxims, non-fulfillment by one party deprives
that party of the right to claim fulfillment by the other. At least this
may be the case in war where, if the violations of the laws of war by the
enemy were passed without retaliation, a belligerent would be at a disad-
vantage and worse off than his enemy who was guilty of the violations, with
reference to the end which has to be striven for by all means, namely breaking
down the determination of the other side and gaining the victory.
The practical reason for reprisals given in the latter part of this
passage is as convincing as any necessity alleged in war can be, but
we must record our dessent from the generality of the assertion that
a mutual obligation is dissolved by the failure of one party to perform
it. If the mutual obligation under which we all lie to obey the law
of the land in what concerns one another is intended, it is certain
that the lawless behavior of our neighbour towards us does not
authorise us to behave lawlessly towards him, but only to call for
redress. If the mutual obligation of contract is intended, it must
Le said that the laws of war are too deeply rooted in humanity and
morality to be discussed on the footing of contract alone, except it
may be some parts of no great importance which convention might
have settled otherwise than it has. Nor, if the footing of contract
be accepted for the discussion, is it true in all cases that a contract is
dissolved by the failure of one party to perform it. In many cases
the other party continues to be bound, although entitled to damages
for the breach. The true basis of the right of reprisal in war seeme
to be, not the impairment of any obligation, but the redressing, by
1
1 Holtzendorff's Handbuch, 255.
508
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
punishment or the exaction of damages, of a violated obligation.
And thus the articles which have been quoted from the Manual of
the Institute occur in its “Part III-Penal Sanction.” If it can
get to be generally felt that the illegalities of the enemy do not set
a state or its commanders loose from law, but entrust them
with a right, not capricious but sacred, to vindicate law by fitting
punishment or the exaction of fitting reparation, it may be expected
that excessive reprisals, and reprisals falling on innocent parties,
will be of less frequent occurrence.
Westlake, vol. 2, pp. 123–126.
No state shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal.
Constitution of United States, art. 1, sec. 10.
3
As regards violations by a belligerent Government, a remedy may
in certain circumstances be found in a resort to reprisals; but in
a case where reprisals would not apply or avail, relief can only
be sought in protest, and by appeal to the judgment of civilized
States. The efficacy of such an appeal, as a deterrent, is even now
not inconsiderable, and will probably grow in strength as time pro-
ceeds, both on account of the increasing fear of neutral disfavour, and
for the reason that in so far as the rules of war are now embodied
in convention all signatories have a common interest in ensuring
their observance. As regards violations by a belligerent commander
or the forces under his control, protest may be made either to the
commander himself, or to the belligerent Government; whilst in
default of satisfaction, and in extreme cases, recourse may be had
to reprisals. These consist in acts of retaliation—not necessarily
similar in character to the acts complained of-which are exercised
either against persons otherwise innocent, as where prisoners of war
are put to death; or against property, as where villages or houses are
destroyed on account of offences committed in or near them. But
reprisals can in general only be authorized by the Commander-in-
Chief; and should only be resorted to after careful inquiry into and
on clear proof of the violations complained of, and in cases where
no other redress is obtainable; whilst they ought not in any case to
exceed in severity the acts complained of.
Cobbett, pt. II, p. 113.
The law of war can no more wholly dispense with retaliation than
can the law of nations, of which it is a branch. Yet civilized nations
acknowledge retaliation as the sternest feature of war. A reckless
enemy often leaves to his opponent no other means of securing him-
self against the repetition of barbarous outrage.
Lieber, art. 27.
RETALIATION OR REPRISALS.
509
Retaliation will, therefore, never be resorted to as a measure of
mere revenge, but only as a means of protective retribution, and
moreover, cautiously and unavoidably; that is to say, retaliation
shall only be resorted to after careful inquiry into the real occur-
rence, and the character of the misdeeds that may demand retri-
bution.
Unjust or inconsiderate retaliation removes the belligerents
farther and farther from the mitigating rules of regular war, and by
rapid steps leads them nearer to the internecine wars of savages.
Lieber, art. 28.
A prisoner of war remains answerable for his crimes committed
against the captor's army or people, committed before he was cap-
tured, and for which he has not been punished by his own authorities.
All prisoners of war are liable to the infliction of retaliatory
measures.
Lieber, art. 59.
3
In the event of an enemy failing to observe the laws and usages of
war, if the offender is beyond reach, resort may be had to reprisals,
if such action should be considered a necessity; but due regard must
always be had to the duties of humanity. Reprisals should not ex-
ceed in severity the offense committed, and must not be resorted to
when the injury complained of has been repaired.
If the offender is within the power of the United States he can be
punished, after due trial, by a properly constituted military or naval
tribunal. Such offenders are liable to the punishments specified by
the criminal law.
(a) In fourth line of Article 8, should the word “military” be
inserted before the word “necessity?"
No, because in general cases where reprisals would be resorted to,
such actions would not be because of military necessity, but rather
for disciplinary purposes in order that the laws and usages of war
might subsequently be observed, e. g., when uncivilized peoples do
not observe these rules.
Action in the nature of reprisal against civilized enemies should
he sanctioned by the general government and not undertaken by a
subordinate officer unless a military necessity requires, as there are
other means for the treatment of civilized enemies.
(b) A prominent authority says, “Reprisal is an act of vengeance
pure and simple and should be wholly proscribed or at least reserved
for wars undertaken against the uncivilized who have no notion of
the law of nations and are accessible only to the feeling of fear.” Is
this a proper statement of the fact and should the whole of Article 8
be stricken out?
510
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
This is not a correct statement of fact as reprisals are now viewed,
though reprisals may sometimes be acts of vengeance. This is the
general continental point of view, however. The English and Ameri-
can point of view is that reprisals are undertaken to secure redress
for injuries and usually are aimed against property or intercourse,
rarely against persons.
Article 8 is however greatly restricted as seen in its provisions for
reprisals:
1. For violation of " laws and usages of war,” one specific cause.
2. By an “offender beyond reach."
3. In case of “necessity” only.
4. Within duties of “humanity.”
5. Proportioned to offense.
6. Only in case of “injury not repaired."
7. Outside power of the United States.
Upon this debatable question of reprisals, an almost wholly obso-
lete form of action, probably it would have been better to refrain
from utterance, but in view of the fact that the article has been
issued, it may be well to leave it unchanged.
U. S. Naval War College Discussions, 1903, pp. 42-43; Naval War
Code of 1900, Article 8.
Reprisals.-Reprisals are acts of retaliation, resorted to by one bel-
ligerent against the enemy individuals or property for illegal acts
of warfare committed by the other belligerent, for the purpose of
enforcing future compliance with the recognized rules of civilized
warfare.
U. S. Manual, p. 132.
Retaliation indispensable.—The law of war can no more wholly
dispense with retaliation than can the law of nations, of which it is
a branch. Yet civilized nations acknowledge retaliation as the stern-
est feature of war. A reckless enemy often leaves to his opponent
no other means of securing himself against the repetition of bar-
barous outrage.
U. S. Manual, p. 133.
Retaliation not resorted to for revenge.-Retaliation will, there
fore, never be resorted to as a measure of mere revenge, but only
as a means of protective retribution, and, moreover, cautiously
and unavoidably; that is to say, retaliation shall only be resorted
to after careful inquiry into the real occurrence, and the charac-
ter of the misdeeds that may demand retribution. Unjust or in-
considerate retaliation removes the belligerents farther and farther
from the mitigating rules of regular war, and by rapid steps leads
them nearer to the internecine wars of savages.
U. S. Manual, p. 133.
"RETALIATION OR REPRISALS.
511
Who may commit the illegal acts causing reprisals.-The illegal acts
of warfare may be committed by a government, by its military com-
manders, or by a community or individuals thereof whom it is impos-
sible to apprehend, try, and punish.
U. S. Manual, p. 133.
Subjects of retaliation.-All prisoners of war are liable to the
infliction of retaliatory measures. Persons guilty of no offense what-
ever may be punished as retaliation for the guilty acts of others.
U. S. Manual, p. 133.
1
Who may resort to retaliation. Reprisals should never be resorted
to by individual soldiers but solely under the direct orders of a
commander.
U. S. Manual, p. 133.
Procedure. The rule requiring careful inquiry into the real occur-
rence will always be followed unless the safety of the troops requires
immediate drastic action and the persons who actually committed the
offense can not be ascertained.
U. S. Manual, p. 133.
Form of reprisal.--The acts resorted to as reprisal need not con-
form to those complained of by the injured party, but should not be
excessive or exceed the degree of violence committed by the enemy.
Villages or houses, etc., may be burned for acts of hostility com-
mitted from them where the guilty individuals can not be identified,
tried, and punished.´ Collective punishments may be inflicted either
in form of fine or otherwise.
U. S. Manual, pp. 133 ,134.
The custom of war permits as an act of reprisals the destruction of
a house by burning or otherwise, whose inmates, without possessing
the rights of combatants, have fired on the troops. Care must, how-
ever, be taken to limit the destruction to the property of the guilty.
Edmonds & Oppenheim. art. 414.
Reprisals between belligerents are retaliation for illegitimate acts
of warfare, for the purpose of making the enemy comply in future
with the recognized laws of war. They are not referred to in the
text of the Hague Rules, but are mentioned in the Report presented
to the Peace Conference of 1899 by the Committee which drew up the
Convention respecting the Laws and Customs of War on Land. They
are by custom admissible as an indispensable means of securing legiti-
mate warfare. The mere fact that they may be expected if violations
of the laws of war are committed, acts to a great extent as a deterrent.
512
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
They are not a means of punishment, or of arbitrary vengeance, but
of coercion.
The illegitimate acts may be committed by a Government, by its
military commanders, or by some person or persons whom it is ob-
viously impossible to apprehend, try, and punish. Owing to the ad-
vance of civilization and the high state of discipline and training o
modern armies, such acts have become more and more uncommon and
are now rarely committed except by irregulars and inhabitants of in-
vaded territory.
Reprisals are an extreme measure because in most cases they inflict
suffering upon innocent individuals. In this, however, their coercive
force exists, and they are indispensable as a last resource.
Although there is no rule of International Law respecting the mat-
ter, reprisals should never be resorted to by the individual soldier, but
only by order of a commander.
An infraction of the laws of war having been definitely established,
every effort should first be made to detect and punish the actual
offenders. Only if this is impossible should other measures be taken
in case the injured belligerent thinks that the facts warrant them.
As a rule the injured party would not at once resort to reprisals, but
would first lodge a complaint with the enemy in the hope of stopping
any repetition of the offence or of securing the punishment of the
guilty. This course should always be pursued unless the safety of
the troops requires immediate drastic action and the persons who
actually committed the offences cannot be secured.
Even when both direct and indirect appeal to the enemy for redress
has failed it should be considered, before resorting to reprisals.
whether he is not more likely to be influenced by steady adherence to
the laws of war on the part of his adversary.
Although collective punishment of the population is forbidden
the acts of individuals for which it cannot be regarded as collectively
responsible, it may be necessary to resort to reprisals against a locality
or community, for some act committed by its inhabitants, or members
who cannot be identified.
What kinds of acts should be resorted to as reprisals is for the con-
sideration of the injured party. Acts done by way of reprisals must
not, however, be excessive and must not exceed the degree of violation
committed by the enemy.
Reprisals may not be resorted to or must at once cease, when the
enemy gives satisfaction for the illegitimate acts committed by him.
Edmonds & Oppenheim, 452-460.
The practice of taking hostages as a means of securing legitimate
warfare was in former times very common. To ensure the observance
of treaties, armistices and other agreements depending on good faith,
RETALIATION OR REPRISALS.
513
hostages were given or exchanged, whose lives were held responsible
for any perfidy. This practice is now obsolete, and if hostages are
nowadays taken at all they have to suffer captivity, and not death, in
case the enemy violates the agreements in question. The Hague
Rules do not mention hostages, and it must be emphasized that in
modern times it is deemed preferable to resort to territorial guarantees
instead of taking hostages.
Use has, in recent times, been made of hostages by placing promi-
nent inhabitants on the engines of trains on the lines of communica-
tion in occupied territory for the purpose of ensuring the traffic from
interruption by the native population.
Such measures expose the lives of innocent inhabitants not only to
the illegitimate acts of train wrecking by private enemy individuals,
but also to the lawful operations of raiding parties of the armed forces
of the belligerent, and cannot therefore be considered a commendable
practice.
It would appear to be legitimate to take inhabitants as hostages
for the proper treatment of wounded and sick when these are left
behind in hostile localities. A similar course might become necessary
if prisoners have fallen into the hands of irregular troops or of in-
habitants who have risen in arms, since there might be fear of their
maltreatment.
Edmonds & Oppenheim, arts. 461-464.
1
As regards the admissibility of reprisals, it is to be remarked that
these are objected to by numerous teachers of international law on
grounds of humanity. To make this a matter of principle, and apply
it to every case exhibits, however, “a misconception due to intelligible
but exaggerated and unjustifiable feelings of humanity, of the signifi-
cance, the seriousness and the right of war. It must not be over-
looked that here also the necessity of war, and the safety of the State
are the first consideration, and not regard for the unconditional
freedom of prisoners from molestation.”
German War Book, pp. 97, 98.
“Having been called upon by the governor-general of the Canadas
to aid him in carrying into effect measures of retaliation against the
inhabitants of the United States for the wanton destruction com-
mitted by their army in Upper Canada, it has become imperiously my
duty, conformably with the nature of the governor-general's appli-
cation, to issue to the naval force under my command, an order to
destroy and lay waste such towns and districts upon the coast as may
be found assailable.
“I had hoped that this contest would have terminated without my
being obliged to resort to severities which are contrary to the usage
514
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of civilized warfare, and as it has been with extreme reluctance and
concern that I have found myself compelled to adopt this system of
devastation, I shall be equally gratified if the conduct of the Executive
of the United States will authorize my staying such proceedings, by
making reparation to the suffering inhabitants of Upper Canada,
thereby manifesting that if the destructive measures pursued by their
army were ever sanctioned, they will no longer be permitted by the
Government."
Moore's Digest, vol. VII, pp. 183, 184; Vice-Admiral Cochrane to Mr.
Monroe, Sec. of State, Aug. 18, 1814, 3 Am. State Papers, For. Rel.
693.
“I have had the honor of receiving your letter of the 18th of
August, stating that, having been called on by the governor-general of
the Canadas, to aid him in carrying into effect measures of retalia-
tion against the inhabitants of the United States for the wanton
desolation committed by their army in Upper Canada, it has become
your duty, conformably with the nature of the governor-general's
application, to issue to the naval force under your command an
order to destroy and lay waste such towns and districts upon the
coast as may be found assailable.
“It is seen, with the greatest surprise, that this system of devas-
tation, which has been practiced by the British forces, so manifestly
contrary to the usage of civilized warfare, is placed by you on the
ground of retaliation. No sooner were the United States compelled
to resort to war with Great Britain, than they resolved to wage it
in a manner most consonant to the principles of humanity, and to
those friendly relations which it was desirable to preserve between
the two nations after the restoration of peace. They perceived,
however, with the deepest regret, that a spirit alike just and humane
was neither cherished nor acted on by your Government. Such an
assertion would not be hazarded if it were not supported by facts,
the proof of which has, perhaps, already carried the same conviction
to other nations that it has to the people of these States. Without
dwelling on the deplorable cruelties committed by the savages in the
British ranks, and in British pay at the river Raisin, which to this
day have never been disavowed or atoned for, I refer, as more imme-
diately connected with the subject of your letter, to the wanton
desolation that was committed at Havre de Grace and at George-
town, early in the spring of 1813. These villages were burnt and
ravaged by the naval forces of Great Britain, to the ruin of their
unarmed inhabitants, who saw with astonishment that they derived
no protection to their property from the laws of war. During the
same season, scenes of invasion and pillage, carried on under the
same authority, were witnessed all along the waters of the Chesa-
RETALIATION OR REPRISALS.
515
seen.
peake, to an extent inflicting the most serious private distress, and
under circumstances that justified the suspicion that revenge and
cupidity, rather than the manly motives that should dictate the hos-
tility of a high-minded foe, led to their perpetration. The late de-
struction of the houses of the Government in this city is another act
which comes necessarily into view. In the wars of modern Europe,
no example of the kind, even among nations the most hostile to each
other, can be traced. In the course of ten years past, the capitals of
the principal powers of the continent of Europe have been conquered,
and occupied alternately by the victorious armies of each other, and
no instance of such wanton and unjustifiable destruction has been
We must go back to distant and barbarous ages to find a
parallel for the acts of which I complain.
“Although these acts of desolation invited, if they did not impose
on the government the necessity of retaliation, yet in no instance has
it been authorized.
“The burning of the village of Newark, in Upper Canada, pos-
terior to the early outrages above enumerated, was not executed on
that principle. The village of Newark adjoined Fort George, and
its destruction was justified by the officers who ordered it, on the
ground that it became necessary in the military operations there.
The act, however, was disavowed by the Government. The burning
which took place at Long Point was unauthorized by the Govern-
ment, and the conduct of the officer subjected to the investigation of
a military tribunal. For the burning at St. David's, committed by
stragglers, the officer who commanded in that quarter was dismissed,
without a trial, for not preventing it.
"I am commanded by the President distinctly to state, that it as
little comports with any orders which have been issued to the mili-
tary and naval commanders of the United States, as it does with the
established and known humanity of the American nation, to pursue
a system which it appears you have adopted. This government
owes it to itself, to the principles which it has ever held sacred, to
disavow, as justly chargeable to it, any such wanton, cruel, and
unjustifiable warfare.
“Whatever unauthorized irregularities may have been committed
by any of its troops, it would have been ready, acting on these prin-
ciples of sacred and eternal obligation, to disavow, and, as far as
might be practicable, to repair. But in the plan of desolating war-
fare which your letter so explicitly makes known, and which is
attempted to be excused on a plea so utterly groundless, the President
perceives a spirit of deep-rooted hostility, which, without the evi-
dence of such facts, he could not have believed existed, or would have
been carried to such an extremity.
516
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
'For the reparation of injuries, of whatever nature they may be,
not sanctioned by the laws of nations, which the military or naval
force of either power may have committed against the other, this
Government will always be ready to enter into reciprocal arrange-
ments. It is presumed that your Government will neither expect
nor propose any which are not reciprocal.
“Should your Government adhere to a system of desolation, so
contrary to the views and practice of the United States, so revolting
to humanity, and repugnant to the sentiments and usages of the
civilized world, whilst it will be seen with the deepest regret, it
must and will be met with a determination and constancy becoming a
free people contending in a just cause for their essential rights and
their dearest interests."
Moore's Digest, vol. VII, pp. 184–186; Mr. Monroe, Sec. of State, to Vice-
Admiral Cochrane, Sept. 6, 1814, 3 Am. State Papers, For. Rel. 693.
:
“I have had the honor to receive your letter of the 16th instant
this morning, in reply to the one which I addressed to you from the
Patuxent.
"As I have no authority from my Government to enter upon any
kind of discussion relative to the points contained in your letter, I
have only to regret that there does not appear to be any hope that I
shall be authorized to recall my general order; which has been
further sanctioned by a subsequent request from Lieutenant-General
Sir George Prevost.
"A copy of your letter will this day be forwarded by me to Eng-
land, and, until I receive instructions from my Government, the
measures which I have adopted must be persisted in, unless remunera-
tion be made to the inhabitants of the Canadas for the injuries they
have sustained from the outrages committed by the troops of the
United States."
Moore's Digest, vol. VII, p. 186; Vice-Admiral Cochrane to Mr. Monroe,
Sec. of State, Sept. 19, 1914, 3 An. State Papers, For. Rel. 694.
By an order of the President, dated April 21, 1902, a court martial
was convened in the Philippines to try Brigadier-General Jacob H.
Smith, U. S. A., on charges based on certain oral orders which he
gave in the autumn of 1901 to Major L. W. T. Waller, of the Marine
Corps, then serving with a battalion of marines, under his orders as
commander of the Sixth Separate Brigade in Samar. The forces
under General Smith were then engaged in a punitory movement,
rendered necessary by the treacherous massacre of an American force
at Balangiga, in Samar, in September, 1901. It was shown that
General Smith gave Major Waller the following oral instructions:
“I want no prisoners. I wish you to kill and burn; the more you
kill and burn the better you will please me.” He also declared that
RETALIATION OR REPRISALS.
517
“the interior of Samar must be made a howling wilderness," and
that he wanted all persons killed who were capable of bearing arms
and in actual hostilities against the United States; and, in reply to
an inquiry by Major Waller for an age limit, designated the age of
ten years. The court-martial found General Smith guilty of conduct
to the prejudice of good order and military discipline, and sentenced
him to be admonished by the reviewing authority, but appended to
the sentence the following explanation:
The court is thus lenient in view of the undisputed evidence that
the accused did not mean everything that his unexplained language
implied; that his subordinates did not gather such a meaning; and
that the orders were never executed in such sense, notwithstanding
that a desperate struggle was being conducted with a cruel and savage
foe."
It appeared that General Smith was wont at times to use extrava-
gant expressions, and that this was a matter of common knowledge.
His oral instructions to Major Waller acquired notoriety in connec-
tion with the subsequent trial of that officer on the charge of having
caused certain natives to be put to death without proper trial. Major
Waller, however, as it appears, did not defend this act on the ground
of any orders received from General Smith, but on the ground
that, as commanding officer, he was justified by the laws of war, be-
cause of the treachery of the natives in question, who had acted as
bearers or guides of one of his expeditions.
President Roosevelt, in reviewing the sentence of the court-martial,
besides giving the recommended admonition, directed that General
Smith, who had reached the age of 62 years and was therefore subject
under the law to be so dealt with, be retired from the active list.
The President's order was as follows:
"The findings and sentence of the court are approved. I am well
aware of the danger and great difficulty of the task our Army has
had in the Philippine Islands, and of the well-nigh intolerable provo-
cations it has received from the cruelty, treachery, and total disregard
of the rules and customs of civilized warfare on the part of its foes.
I also heartily approve the employment of the sternest measures
necessary to put a stop to such atrocities, and to bring this war to a
close. It would be culpable to show weakness in dealing with such
foes or to fail to use all legitimate and honorable methods to overcome
them. But the very fact that warfare is of such character as to afford
infinite provocation for the commission of acts of cruelty by junior
officers and the enlisted men, must make the officers in high and re-
sponsible positions peculiarly careful in their bearing and conduct
so as to keep a moral check over any acts of an improper character
by their subordinates.
1
518
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
“Almost universally the higher officers have so borne themselves
as to supply this necessary check; and with but few exceptions the
: officers and soldiers of the army have shown wonderful kindness and
forbearance in dealing with their foes. But there have been excep-
tions; there have been instances of the use of torture and of im-
proper heartlessness in warfare on the part of individuals or small
detachments.
“ In the recent campaign ordered by General Smith, the shooting
of the native bearers by the orders of Major Waller was an act which
sullied the American name, and can be but partly excused because
of Major Waller's mental condition at the time, this mental condition
being due to the fearful hardship and suffering which he had under-
gone in his campaign. It is impossible to tell exactly how much influ-
ence language like that used by General Smith may have had in pre-
paring the minds of those under him for the commission of the deeds
which we regret. Loose and violent talk by an officer of high rank
is always likely to excite to wrongdoing those among his subordinates
whose wills are weak or whose passions are strong.
“General Smith has behind him a long career distinguished for
gallantry and on the whole for good conduct. Taken in the full, his
work has been such as to reflect credit upon the American Army,
and therefore upon the nation; and it is deeply to be regretted that
he should have so acted in this instance as to interfere with his fur-
ther usefulness in the Army. I hereby direct that he be retired from
the active list.”
The foregoing order was accompanied with a report by Mr. Root,
Secretary of War. In this report Mr. Root found as a fact that
General Smith's oral instructions were not taken literally and were
not followed," and that "no women or children or helpless persons
or noncombatants or prisoners were put to death in pursuance of
them.” He said:
“An examination of the evidence has satisfied me that the convic-
tion was just, and that the reasons stated for the very light sentence
imposed are sustained by the facts. General Smith, in his conver-
sation with Major Waller was guilty of intemperate, inconsiderate,
and violent expressions, which, if accepted literally, would grossly
violate the humane rules governing American armies in the field,
and if followed would have brought lasting disgrace upon the mili-
tary service of the United States. Fortunately, they were not taken
literally and were not followed. No women or children or helpless
persons or noncombatants or prisoners were put to death in pursuance
of them.
"An examination of the records and proceedings upon the trial of
Major Waller, which immediately preceded that of General Smith,
shows that the instructions in question bore no relation to the acts
RETALIATION OR REPRISALS.
519
for which Major Waller was tried, and were not alleged by him as
justification for those acts. Major Waller was tried for causing cer-
tain natives, who had acted as bearers or guides of one of his ex-
peditions, to be put to death for treachery without proper trials; and
he defended his action, not upon the ground of any orders received
from General Smith, but upon the ground that as commanding officer
he was justified by the laws of war.
General Smith's written and printed orders, and the actual con-
duct of military operations in Samar, were justified by the history
and conditions of the warfare with the cruel and treacherous savages
who inhabited the island, and their entire disregard of the laws of
war, were wholly within the limitations of General Orders, No. 100,
of 1863, and were sustained by precedents of the highest authority.
Thus, in 1779, 'Washington ordered General Sullivan in the cam-
paign against the Six Nations to seek the total destruction and dev-
astation of their settlements. He wrote, “But you will not by any
means listen to overtures of peace before the total ruin of their set-
tlement is effected. ... Our future security will be in their inability
to injure us, the distance to which they are driven, and in the terror
with which the severity of the chastisement they receive will inspire
them.'
* The Fort Phil Kearny massacre in 1866, for the base treachery,
revolting cruelty, and the conditions of serious danger which fol-
lowed it did not approach the massacre at Balangiga in Samar in
September, 1901. There the natives had been treated with kindness
and confidence, liberty and self-government had been given to them.
Captain Connell, the American commander, was of the same faith
and had been worshiping in the same church with them. With all
the assurance of friendship our men were seated at their meal un-
armed among an apparently peaceful and friendly community, when
they were set upon from behind and butchered and their bodies when
found by their comrades the next day had been mutilated and treated
with indescribable indignities. Yet there was no such severity by
American soldiers in Samar as General Sherman proposed toward
the Sioux after Fort Phil Kearny.
“It is due, however, to the good sense and self-restraint of General
Smith's subordinates, and their regard for the laws of war, rather
than to his own self-control and judgment, that his intemperate and
unjustifiable verbal instructions were not followed, and that he is
relieved from the indelible stain which would have resulted from a
literal compliance with them.
“It is the duty of a general officer whose age and experience have
brought him to high command not to incite his subordinates to acts
of lawless violence, but to so explain to them the application of the
laws of war and the limitations upon their conduct as to prevent
520
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
transgressions upon their part and supplement their comparative in-
experience by his wise control. In this General Smith has signally
failed, and for this he has been justly convicted. Although the sen-
tence imposed is exceedingly light, it carries with it a condemnation
which, for an officer of his rank and age, is really severe punishment.
“For this reason and for the further reason that General Smith
has served his country long and faithfully, has exhibited high cour-
age and good conduct in many battles, has been seriously wounded
in the civil war and in the war with Spain, and is about concluding
a long and honorable career as a faithful and loyal servant of his
country, I recommend that the mild sentence imposed be confirmed.
“Should you approve the findings and sentence of the court in
accordance with this recommendation, I feel, bound to say, further,
that in view of the findings and sentence and of the evident infirmi-
ties which have made it possible that the facts found should exist,
it is not longer for the interest of the service that General Smith
should continue to exercise the command of his rank. His useful-
ness as an example, guide, and controlling influence for the junior
officers of the Army is at an end; and as he is already upward of
sixty-two years of age, I recommend that you exercise the discretion
vested in you by law and now retire him from active service."
Moore's Digest, vol. VII, pp. 187-190.
Barron v. Baltimore, 7 Peters, 249.-The Court said that to grant
letters of marque and reprisal would lead directly to war, the power
of declaring which is expressly given to Congress.
CARTELS.
Cartel ships.
But cartel Ships are not allowed to abuse their privilege; the sacred
character which is the cause of it must be religiously maintained, and
their employment must be wholly unconnected with commercial or
other objects. Therefore Cartel Ships have no right to trade or take
in a cargo; and the doing so subjects, strictly speaking, the vessel, and
always the cargo, to confiscation.
But it has been holden that a Cartel appointed in time of peace,
but in contemplation of War, which, in accordance with the stipula-
tions of the Cartel contract, took on board a cargo at an intermediate
port after the breaking out of hostilities, had not forfeited her privi-
leges of a Cartel thereby; and restitution of a ship and cargo was
accordingly decreed, save as to some few articles subsequently taken
on board, and as to which no proof of property was adduced.
A ship going to be employed as a Cartel Ship is not protected by
mere intention on her way from one port to another of her own coun-
try, for the purpose of taking on herself the character when she arrives
at the latter port. If such a necessity occurs, it is proper to apply to
the Commissary of Prisoners in the enemy's country for a pass.
Lastly, it is to be remembered that persons put on board a Cartel
Ship with their own consent by the Government of the enemy, to be
carried to their own country, are bound to do no act of hostility.
Therefore, a capture made by such persons of a vessel of their own
country from the enemy, is not a recapture in contemplation of law;
it gives them no title to salvage, and confers on the former owner no
title to claim the vessel; and property so recovered has been decreed to
be given up to the disposal of the Crown.
Phillimore, vol. III, pp. 182, 183.
+
Cartel ships.
The same interdiction of trade applies to ships of truce, or cartel
ships, which are a species of navigation, intended for the recovery
of the liberty of prisoners of war. Such a special and limited inter-
course is dictated by policy and humanity, and it is indispensable that
it be conducted with the most exact and exclusive attention to the
original purpose, as being the only condition upon which the inter-
course can be tolerated. All trade, therefore, by means of such vessels
is unlawful, without the express consent of both the governments
110678–19-34
521
522
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
concerned. It is equally illegal for an ally of one of the belligerents,
and who carries on the war conjointly, to have any commerce with the
enemy.
Kent, vol. I., p. 83; The Venus, 4 C. Rob. 55; The Carolina, 6 C. Rob. 336.
I
A cartel is an agreement between belligerents for the exchange or
ransom of prisoners of war. The actual existence of a war is not
essentially necessary to give effect to cartels, but it is sufficient if they
are entered into prospectively and in expectation of approaching hos-
tilities; for the occasions for them may just as naturally arise from a
view of approaching events, and parties may contract to guard against
the consequence of hostilities which they may foresee. Both belliger-
ents are bound to faithfully observe such compacts, and a cartel party
sent under a flag of truce to carry into execution the provisions of a
cartel is equally under the protection of both. “Good faith and
humanity," says Wheaton, “ought to preside over the execution of
these compacts, which are designed to mitigate the evils of war, with-
out defeating its legitimate purposes. By the modern 'usages of
nations, commissaries are permitted to reside in the respective bel-
ligerent countries, to negotiate and carry into effect the arrangements
necessary for this object. Breach of good faith in these transactions
can be punished only by withholding from the party guilty of such
violation the advantages stipulated by the cartel; or, in cases which
may be supposed to warrant such a resort, by reprisals or vindictive
retaliation.” In the United States such compacts are not deemed
treaties in the sense of the Constitution; a cartel for the exchange of
prisoners, between the United States and Great Britain, in 1813, was
ratified by the American Secretary of State (May 14).
Halleck, pp. 666, 667; Wheaton, pt. 4, ch. 2, sec. 3.
Cartel ships.
A cartel ship is a vessel commissioned for the exchange or ransom
of prisoners of war, or to carry proposals from one belligerent to the
other, under a flag of truce. Such commission and flag are considered
to throw over the vessel, and the persons engaged in her navigation,
the mantle of peace; she is, pro hoc vice, a neutral licensed vessel, and
her crew are also neutrals; and so far as relates to the particular
service in which she is employed, she is under the protection of both
belligerents. But she can carry no cargo, and no ammunition or im-
plements of war, except a single gun for firing signals. This is re-
garded as a species of navigation which, on every consideration of
humanity and policy, should be conducted with the strictest regard to
the original purpose, and to the rules which are built upon it, since, if
this mode of intercourse be broken off, it will be followed by calamitous
results to individuals of both belligerents. It is, therefore, said by
CARTELS.
523
high authority, that cartel ships cannot be too narrowly watched;
and that both parties should take care that the service should be con-
ducted in such a manner as not to become a subject of jealousy and
distrust between the two nations. The authority to commission a
cartel ship is supposed to emanate from the supreme power of the
State, but it may be issued by a subordinate officer, in the due execu-
tion of a public duty. When a cartel ship appears to have been em-
ployed in the public service, and for the purposes of humanity, it will
be presumed that the commission under which she acts was issued by
the sanction of the councils of the State, until renounced by the sover-
eignty from which it is supposed to emanate. Thus, a cartel, granted
by the commander of the British forces, at Amboyna, to a Dutch
vessel, was held by Sir William Scott to be valid for the protection of
the vessel from capture and condemnation.
Halleck, p. 667; The Carolina, 6 C. Rob., 336; The Venus, 4 C. Rob., 355.
Cartel ships.
The rights, immunities, and duties of cartel ships have been mat-
ters of discussion and judicial decision in prize courts. Sir William
Scott gave a very elaborate opinion on this subject, in the case of the
Daifjie. With respect to the character of the ships employed in
such service, he says it is generally immaterial whether they are mer-
chant ships or ships of war, but there may be extreme cases in which
the nature of the ship might be material; “ as, if a fire ship was to be
sent on such service to Portsmouth, or Plymouth, though she had
prisoners on board, she would undoubtedly be an unwelcome visitor
to a naval arsenal, and her particular character might fairly
justify a refusal to admit her.” He was also of opinion that the
cartel protected such ships, not only in trajectu, ad eundum et
redeundum, but also in going from one port to another to be fitted up
and to take prisoners on board, although the passage of ships from
one port to another of an enemy is liable to suspicion. Moreover,
that a vessel going to be employed as a cartel ship is not protected by
mere intention, on her way, for the purpose of taking on herself that
character when she arrives. When it is necessary to send to another
port for vessels for such purpose, it is proper to apply to the enemy's
commissary of prisoners for a pass or special safe-conduct. The
principal question to be decided in such cases, is that of intention;
if the vessel is actually commissioned and employed as a cartel ship.
if she is fitted out and conducts herself, in every respect, as a cartel
ship, she is protected as such; but if she is acting fraudulently, she
is liable to condemnation. Imprudence and negligence do not consti-
tute fraud.
Halleck, p. 668; The Daifjie, 3 C. Rob. 141.
524
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
There are certain compacts between nations which are concluded,
not in virtue of any special authority, but in the exercise of a general
implied power confided to certain public agents, as incidental to their
official stations. Such are the official acts of generals and admirals,
suspending or limiting the exercise of hostilities within the sphere
of their respective military or naval commands, by means of special
licenses to trade, of cartels for the exchange of prisoners, of truces
for the suspension of arms, or capitulations for the surrender of å
fortress, city, or province. These conventions do not, in general,
require the ratification of the supreme power of the State, unless such
a ratification be expressly reserved in the act itself.
Wheaton, p. 329.
+
Cartels for the mutual exchange of prisoners of war are regulated
by special convention between the belligerent States, according to
their respective interests and views of policy.
Wheaton, p. 430.
Cartels are a form of convention made in view of war or during its
existence in order to regulate the mode in which such direct intercourse
as may be permitted between the belligerent nations shall take place,
or the degree and manner in which derogations from the extreme
rights of hostility shall be carried out. They provide for postal and
telegraphic communication, when such communication, is allowed to
continue, for the mode of reception of bearers of flags of truce, for
the treatment of the wounded and prisoners of war, for exchange
and the formalities attendant on it, and for other like matters.
Hall, pp. 570, 571.
It was formerly the practice for the state to leave to each prisoner,
at least during the war, the care of redeeming himself, and the captor
had a lawful right to demand a ransom for the release of his pris-
oners. The present usage of civilized nations is, however, to exchange
prisoners of war or to release them on their parole or word of honor
not to serve against the captor again for a definite period, during
the war, or till properly exchanged. An agreement between belliger-
ents for the exchange (and formerly for the ransom) of prisoners of
war is called a cartel, and a vessel commissioned for the exchange
of prisoners of war or to carry proposals from one belligerent to the
other under a flag of truce, is sometimes called a cartel ship.
As to the disability of an alien enemy to sue on a ransom bill, see Anthon vs.
Fisher, 2 Douglas, 649.
Moore's Digest, vol. VII, p. 226.
The term “cartel” is most commonly employed to denote an ar-
rangement entered into between the belligerents with reference to
CARTELS.
525
the exchange, or treatment, of prisoners. This term is, however, of
general application, and may be used with reference to agreements
for other purposes.
Holland, p. 51.
Definition and purpose of cartels.
Cartels are conventions between belligerents concluded for the
purpose of permitting certain kinds of nonhostile intercourse be-
tween one another such as would otherwise be prevented by the con-
dition of war. Cartels may be concluded during peace in anticipa-
tion of war, or during the time of war, and they may provide for
numerous purposes. Thus, communication by post, telegraph, tele-
phone, and railway, which would otherwise not take place, can be
arranged by cartels, as can also the exchange of prisoners, or a cer-
tain treatment of wounded, and the like. Thus, further, intercourse
between each other's subjects through trade can, either with or with-
out limits, be agreed upon by belligerents. All rights and duties
originating from cartels must be complied with in the same manner
and good faith as rights and duties arising from other treaties.
Oppenheim, vol. II, pp. 282, 283.
Cartel ships.
Cartel ships are vessels of belligerents which are commissioned
for the carriage by sea of exchanged prisoners from the enemy coun-
try to their own country, or for the carriage of official communica-
tions to and from the enemy. Custom has sanctioned the following
rules regarding these cartel ships for the purpose of securing pro-
tection for them on the one hand, and, on the other, their exclusive
employment as a means for the exchange of prisoners: Cartel ships
must not do any trade or carry any cargo or despatches; they are
especially not allowed to carry ammunition or instruments of war,
except one gun for firing signals. They have to be furnished with
a document from an official belonging to the home State of the pris-
oners and stationed in the country of the enemy declaring that they
are commissioned as cartel ships. They are under the protection of
both belligerents and may neither be seized nor appropriated. They
enjoy this protection not only when actually carrying exchanged
prisoners or official communications, but also on their way home
after such carriage and on their way to fetch prisoners or official
communications. They lose the protection at once, and may conse-
quently be seized and eventually be appropriated, in case they do
not comply, either with the general rules regarding cartel ships, or
with the special conditions imposed upon them.
Oppenheim, vol. II, pp. 283, 284.
1
526
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Cartel ships.
Cartel-ships form another exception. They are vesssels employed
in services connected with the exchange of prisoners of war. Each
of them should carry a permit emanating from the supreme govern-
ment of the enemy state, authorising her to pursue her humane mis-
sion without molestation. In the case of the Carolina Sir W. Scott
decided that a subordinate authority might issue such a protection;
and in the case of the Daifjie he laid down that to enjoy the benefit
of it the cartel ship need not have prisoners actually on board. She
is protected from capture on both the outward and the return voy-
age, and even when she has done no more than enter on her functions
by being put in a state of preparation to perform them. But the
mere intention to become a cartel-ship will not be sufficient; and a
vessel on her way from one port to another of her own country for
the purpose of taking on herself that character may be captured,
unless she has obtained a pass from a commissary of prisoners, who
is an official of one belligerent residing in the country of the other
in order to carry out the arrangements connected with exchange.
Belligerents may employ either public or private vessels in their
cartel service; but the carriage of merchandise, despatches, or pas-
sengers is strictly forbidden, and also the performance of any hostile
acts, or even the taking on board of the means to perform them in
the shape of armament. The law of the matter rests solely on usage
as interpreted by prize court decisions, and is at present of little
importance owing to the disuse of exchange in recent wars. But the
practice may be revived at any time, and therefore it cannot be
passed over unnoticed.
Lawrence, pp. 453, 454; The Carolina, 1 C. Rob. 336; The Daifjie, 3
C. Rob. 140.
Another mode of intercourse between belligerents is by Cartels,
which are agreements entered upon during war, or in anticipation of
it, in order to regulate some kinds of such intercourse as is to be al-
lowed in the course of the struggle. They prescribe, for instance, the
formalities to be observed in the exchange of prisoners, the reception
of flags of truce, and the interchange of postal or telegraphic com-
munications. Whatever regulations are laid down in them should be
observed in good faith, and without any attempt to wrest them from
their humane purposes, and turn them into means of obtaining in-
formation or gaining military advantage. Cartels for the exchange
of prisoners were frequent incidents of wars between civilized pow-
ers, and may become frequent again in the event of a revival of the
custom of exchange. The arrangements connected with the process
were made and supervised by officers called commissaries, who were
CARTELS. .
527
appointed by each belligerent, and allowed to reside in the country of
the enemy. Cartel-ships were vessels employed in the conveyance of
prisoners to and from the place of exchange. They were free from
hostile seizure on the conditions set forth when we were considering
the extent to which public vessels of the enemy are liable to capture.
Lawrence, pp. 558, 559.
The exchange of prisoners as between the belligerents is usually
regulated by cartels; commissaries being appointed on either side to
supervise their execution.
Cobbett, pt. II, p. 107.
Cartel ships.
Enemy vessels actually engaged in cartel service are exempt from
capture, both when carrying exchanged prisoners, when returning
from such service, and—as we may gather from the decision in The
Daif jie-even when proceeding to take up such service, so long as
that intention is clearly established. But such vessels will forfeit
their privilege if they engage in mercantile traffic or otherwise abuse
their position.
Cobbett, pt. II, p. 170; The Daifjie, 3 C. Rob. 139.
No exchange of prisoners shall be made except after complete cap-
ture, and after an accurate account of them, and a list of the cap-
tured officers, has been taken.
Lieber, art. 110.
Treating captured rebels as prisoners of war, exchanging them,
concluding of cartels, capitulations, or other warlike agreements
with them; addressing officers of a rebel army by the rank they may
have in the same; accepting flags of truce; or, on the other hand, pro-
claiming martial law in their territory, or levying war taxes or
forced loans, or doing any other act sanctioned or demanded by the
law and usages of public war between sovereign belligerents, neither
proves nor establishes an acknowledgment of the rebellious people,
or of the government which they may have erected, as a public or
sovereign power. Nor does the adoption of the rules of war toward
rebels imply an engagement with them extending beyond the limits
of these rules. It is victory in the field that ends the strife and settles
the future relations between the contending parties.
Lieber, art. 153.
Cartels.-- In the customary military sense a cartel is an agreement
entered into by belligerents for the exchange of prisoners of war. In
its broader sense it is a convention concluded between belligerents
528 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
for the purpose of arranging or regulating certain kinds of non-
hostile intercourse otherwise prohibited by the existence of the war.
A cartel is voidable as soon as either party has violated it.
U. S. Manual, p. 102.
United States v. Wright, 28 Fed. Cas., 1796.-Both belligerents are
bound to observe the terms of the cartel, and they are of such force
under the law of nations that even the sovereign can not annul them."
U. S. Manual, p. 102, uote.
A cartel, in the wider sense of the term, is used to signify a con-
vention concluded between belligerents for the purpose of permitting
certain kinds of non-hostile intercourse which would otherwise be
prevented by the conditions of war. For instance, communication
by post, trade in certain commodities, and such like, may be agreed
upon by a cartel. As used in a strictly military sense, however, a
cartel means an agreement for the exchange of prisoners of war.
Edmonds & Oppenheim, art. 338.
1
Treaties of Exchange.—These have for their object the mutual dis-
charge or exchange of prisoners of war. Whether the opponent will
agree to an offer of this kind or not, depends entirely upon himself.
The usual stipulation is: An equal number on both sides. That is
only another way of saying that a surplus of prisoners on the one side
need not be handed over.
German War Book, pp. 135, 136.
t t
:
INTERFERENCE WITH COMMUNICATION.
[For citations under the heading of article 54, Hague Convention
IV, 1907, concerning the treatment of submarine cables connecting
an occupied territory with a neutral territory, see “ The Laws of
Neutrality," United States Government Printing Office, 1918, pp.
31-33.]
2. A cable connecting the territories of two belligerents or two parts
of the territory of one of the belligerents may be cut anywhere ex-
cept in the territorial sea and in the neutralized waters appertaining
to a neutral territory (“neutralized” by treaty or by declaration in
accordance with Article 4 of the Paris resolutions of 1894).
*
5. In applying the preceding rules, no difference is to be made be-
tween State cables and cables owned by individuals, nor between
cables which are enemy property and those which are neutral prop-
erty.
Institute, 1902, p. 162.
ARTICLE 54. C. Submarine Cables. In the conditions stated be-
low, belligerent States are authorized to destroy or to seize only the
submarine cables connecting their territories or two points in these
territories, and the cables connecting the territory of one of the
nations engaged in the war with a neutral territory.
The cable connecting the territories of the two belligerents or two
points in the territory of one of the belligerents, may be seized or
destroyed throughout its length, except in the waters of a neutral
State.
A cable connecting a neutral territory with the territory of one of
the belligerents may not, under any circumstances, be seized or de-
stroyed in the waters under the power of a neutral territory. On
the high seas, this cable may not be seized or destroyed unless there
exists an effective blockade and within the limits of that blockade,
on consideration of the restoration of the cable in the shortest time
possible. This cable may be seized or destroyed on the territory of
and in the waters belonging to the territory of the enemy for a dis-
tance of three marine miles from low tide. Seizure or destruction
may never take place except in case of absolute necessity.
In applying the preceding rules no distinction is to be made be-
tween cables, according to whether they belong to the State or to
individuals; nor is any regard to be paid to the nationality of their
owners.
529
530
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Submarine cables connecting belligerent territory with neutral ter-
ritory, which have been seized or destroyed, shall be restored and
compensation fixed when peace is made.
Institute (1913), pp. 188, 189.
Whether postal or telegraphic communication is forbidden or
allowed is a subject upon which the belligerents decide purely in
accordance with their own convenience.
Hall, p. 571.
When messages were first exchanged by Transatlantic cable be-
tween England and America in 1888, President Buchanan, in replying
to a congratuiatory despatch from Queen Victoria, inquired whether
“all the nations of Christendom will not spontaneously unite in the
declaration that it shall be forever neutral, and that its communica-
tions shall be held sacred in passing to the place of their destination,
even in the midst of hostilities." It need hardly be stated that the
President's hope has not been realized. The International Conven-
tion for the Protection of Submarine Cables, signed at Paris on April
16, 1884, is expressly declared by its 15th article to “in no wise restrict
the action of belligerents”; and H. R. 54, it will be observed, relates
only to cables connecting neutral with occupied territories.
Holland, p. 58.
At the Hague Conference of 1899 it was proposed to add the words
“cables d'aterrissage "__"shore ends of cables”—to the list of prop-
erty (railways, telegraphs, etc.), which a belligerent was entitled to
seize, subject to his restoring them or paying compensation. The
proposal was abandoned owing to Great Britain's refusal to accept
any provision which seemed to trench upon maritime war law. No
similar objection was raised in 1907 to the much wider provision on
the same subject contained in Article LIV, which is an offspring of
the last Hague Conference.
Spaight, pp. 416, 417.
Chili paid compensation for cutting the cable of a British Company
in her war with Peru. But when Admiral Dewey cut the Hong-
Kong-Manila cable at Manila in 1898 the United States declined to
admit the claim to compensation preferred by the British Company
which owned the line.
Spaight, pp. 417, 418.
Submarine Cables.The enormous development of international
communications during the last half-century could not be better illus-
trated than by a comparison of the chart of the existing submarine
cables of the world with that of fifty years ago.
The necessity of taking special measures for the protection of this
important institution of modern life soon became apparent, and led
INTERFERENCE WITH COMMUNICATION.
531
to a number of treaties from 1863 onwards. Finally an international
convention was signed at Paris on March 14th, 1884, regulating sub-
marine cables in time of peace.
If sea-cables are an important instrument of peace, they are at the
same time a most potent implement of war. Time is money to the
merchant as well as to the military commander. In order to keep
the mastery of the sea, it is not only necessary to have ships and
coaling stations: it is of equal importance to possess sure and rapid
means of directing the movements of fleets on the chessboard of the
seas. In fact, “a modern war between two naval Powers has reduced
itself largely to a question of coals and cables."
The topic is of special importance for England, as her“ sea power
is not alone measured by the number, character and tonnage of her
warships; it is immensely increased by the system of an exclusively
controlled submarine cable network, at present including nearly
four-fifths of all the cables of the world, woven like a spider's web
to include all her principal colonies, fortified posts, and coaling
stations."
Two theories have been put forward as to the nature of submarine
cables. The one assimilates them to ships and considers them subject
to the same burdens as movables afloat. According to the other, which
is conceived to be the true view, a sea-cable is a “geographical fact,"
a kind of bridge connecting two territories.
The theory of territoriality leads to important deductions:
1. Submarine cables are not movable property. They are not sub-
ject to the general right of capture of property at sea.
2. They are, however, liable to be damaged or destroyed by the
enemy in circumstances analogous to those permitting the exercise
of the rights of war on telegraphs on land.
3. Submarine cables are under the territorial jurisdiction of the
State on whose shores they terminate. If they end in two separate
jurisdictions, they are subject to a condominium on the high seas. Each
State, however, has exclusive jurisdiction over them within its own
territorial waters.
4. A cable passing through the territorial waters of a foreign State
enjoys the benefit of ex-territoriality provided it does not infringe
the local laws.
*
*
*
It is clear that where a belligerent lawfully cuts or destroys a
cable within his enemy's territorial waters as part of the operations
of war, the owners will not be entitled to indemnity. The analogy of
the jus angariae, which has reference only to neutral property in
transitu through a belligerent's jurisdiction, has no application here.
Lafiti, pp. 112-116.
532
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
?
Interference with submarine telegraph cables.
As the “International Convention for the protection of Submarine
Telegraph Cables” of 1884 expressly stipulates by article 15 that
freedom of action is reserved to belligerents, the question is not
settled how far belligerents are entitled to interfere with submarine
telegraph cables. The only conventional rule concerning this ques-
tion is article 54 of the Hague Regulations, inserted by the Second
Peace Conference, which enacts that submarine cables connecting
occupied enemy territory with a neutral territory shall not be seized
or destroyed, and that, if a case of absolute necessity has compelled
the occupant to seize or destroy such cable, it must be restored after
the conclusion of peace and indemnities paid. There is no rule in
existence which deals with other possible cases of seizure and
destruction.
Oppenheim, vol. 2, p. 271.
The U. S. Naval War Code, article 5, laid down the following
rules:
(1) Submarine telegraphic cables between points in the territory
of an enemy, or between the territory of the United States and that
of an enemy, are subject to such treatment as the necessities of war
may require.
(2) Submarine telegraphic cables between the territory of an
enemy and neutral territory may be interrupted within the territorial
jurisdiction of the enemy.
(3) Submarine telegraphic cables between two neutral territories
shall be held inviolable and free from interruption.
Oppenheim, vol. 2, p. 272.
The case is different when a belligerent intends to arrange the
transmitting of messages through a submarine cable purposely laid
over neutral territory or through telegraph and telephone wires pur-
posely erected on neutral territory. This would seem to be an abuse
of neutral territory, and the neutral must prevent it. Accordingly,
when in 1870, during the Franco-German War, France intended to
lay a telegraph cable from Dunkirk. to the North of France, the cable
to go across the Channel to England and from there back to France,
Great Britain refused her consent on account of her neutrality. And
again in 1898, during the war between Spain and the United States of
America, when the latter intended to land at Hong Kong a cable pro-
posed to be laid from Manila, Great Britain refused her consent.
Oppenheim, vol. 2, p. 436.
On three points relating to submarine telegraph cables there is
universal agreement. Such a cable connecting two neutral territories
is inviolable. A cable connecting the territories of enemy belliger-
ents, or two parts of the territory of one of them, may be cut in the
INTERFERENCE WITH COMMUNICATION.
533
territorial waters of either or in the open sea, but not in neutral
territorial waters if it should happen to pass through them. And
a cable connecting a neutral with a belligerent territory may be cut
in the territorial waters of the latter, but not in those of the former.
But whether a cable connecting a neutral with a belligerent terri-
tory may be cut in the open sea by the enemy of the latter is a
question which H. LIV leaves open. The three points agreed
are covered without controversy by the principles that a belliger-
ent may do acts of war in his own or his enemy's territory or
territorial waters, but not in those of a neutral, nor in the open
sea against neutral property not implicated in offences against the
international rules of contraband or blockade. In this the term
property” is not limited to its sense in internal law. A tele-
graph cable cannot be attached to the shore except by the terri-
torial sovereign or by virtue of a concession from him, granted
from public motives and always subject to public control, so that it
is a public institution belonging internationally to the state, even
although it may in the narrower sense be the property of a company.
If the cable connects different states it belongs to both, and if they are
respectively neutral and belligerent it cannot be cut without violence
being done to the neutral interest. That is justifiable in the terri-
torial waters of the belligerent part owner, because property durably
affixed to the soil must share the fate of the soil, as in liability to
requisitions and contributions on land. It would not be justifiable
to subject the neutral interest to violence in the open sea, and thus the
principles which govern the undisputed cases dictate a negative
answer to the question put in the fourth place, the decision in all
being independent of the legal property in the cable being vested
in a state or in a company.
Nevertheless the Institute of International Law in 1902 adopted
resolutions with regard to submarine telegraph cables which, while
otherwise in accordance with what we have said, laid down that "a
cable connecting a neutral territory with the territory of one of the
belligerents cannot be cut in the open sea unless there is an effective
blockade, and then within the limits of the line of blockade, and subject
to the duty of reestablishing the cable in the shortest time possible.”
This was carried by a large majority, the reporter in its favour
being the eminent Professor von Bar, and the equally eminent Ger-
man and French jurists, Herr Perels and MM. Renault and Lainé,
voting in the minority only because they objected to the liberty of cut-
ting the cable being restricted to the existence and line of a blockade.
M. Renault invoked, not indeed the rules, but what he contended to
be the principle of the law of contraband. Ships may be visited, and
confiscated if they are found to carry contraband despatches: the
right is used sparingly against postal packet-boats, but it exists.
534
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Despatches are now sent by telegraph, and “belligerents must find
in the new situation an equivalent for the protection which they have
lost.” The new defence by cutting cables in the open sea must be
admitted, “because otherwise there would no longer be any means
of defence at all."
Herr Perels declined to concern himself with an enquiry into the
principles of contraband, blockade, or angary, “fearing lest such
ideas should complicate the discussion by leading to endless develop-
ments
It is desirable to have free communications, but
it is impossible to sacrifice the interests of belligerents. Military
necessities must be reckoned with. We can in the Institute propose
what we like, but the question is what governments can adopt."
General den Beer Poortugael gave to these arguments the conclusive
(as we think) answers that “there is no necessity of war against
neutrals because there is no war against them "; and that unless you
can sink a packet-boat because bad weather or the approach of an
enemy prevents your verifying by a visit her having obnoxious.
despatches on board, cutting a cable when you cannot ascertain what
despatches are sent by it has no analogy to the procedure in the case
of contraband. Professor von Bar, who also rejected both the doc-
trine of military necessity and the analogy to contraband, took the
view, which the Institute appears to have adopted, that the principle
of blockade is to prohibit all communication with the blockaded: coast,
and that communication by cable is a breach of that principle.
In truth, against all these attempts to impose fresh burdens on
neutrals by extending the rules of blockade and contraband there lies
the objection, deeper than that arising from the failure of any par-
ticular analogy, that those rules are not due to principle but to com-
promise, and therefore furnish no standing-ground on which a de-
ductive extension can rest. Any extension must be the independent
result of agreement, express or tacit, and in the latter case long and
well tried. Meantime the general principles of neutrality, the only
ones which as yet there are in the case, deny to a belligerent, blockade
or no blockade, the right of cutting a neutral or neutral-belligerent
cable outside territorial waters. It follows, if that is so, that a neu-
tral may legitimately resent any such cutting of a cable in which he
is interested, so long as no rules permitting it have received his assent,
or have become a part of international law in the regular progress
of its development.
Westlake, vol. 2, pp. 116–118; 19 Annuaire, pp. 308-332.
Private letters.
To paralyse the enemy's government in all its operations is a legiti-
mate means of compelling it to submit to the terms of peace de-
manded. Even private letters may be “of an injurious tendency,"
INTERFERENCE WITH COMMUNICATION.
535
and so “ give the captors the right of enquiry," apparently whether
they ought not in the circumstances to be regarded as really public
communications, for which purpose they may bring in the ship carry-
ing them; but if the communications are not found to be public she
will not be condemned.
Westlake, vol. 2, p. 305.
The case of Land and Submarine Telegraphs.-(1) With respect
to land telegraphs each belligerent is entitled, within his own terri-
tory, to exercise such control over these, even though owned by
neutrals, as may be warranted by the local law, or by the necessities
of war. So, in time of war, it is usual for each of the belligerent Gov-
ernments to assume control over all lines communicating directly
with the enemy territory, and to exercise a censorship over all mes-
sages except such as pass between neutral States and their representa-
tives. This course was followed by the United States in the Spanish-
American War of 1898; and also by. Great Britain in the South Afri-
can war of 1899, although with some relaxations towards the end of
the war. Nor will any claim to compensation arise in respect to
such interference, unless this is given by the municipal law. A bel-
ligerent in occupation of enemy territory is also entitled to take
possession of all telegraphs and telephones; although if owned by
private persons, whether neutrals or nationals, they must be restored,
and compensation arranged for on the conclusion of peace. (2) With
respect to submarine cables, the land connections of these are, in time
of war, subject to the same rights of user and control, whether on the
part of the territorial Power or a belligerent invader, as land tele-
graphs. As regards those parts that lie outside territorial waters,
the protection of submarine cables is in general provided for by the
Submarine Telegraph Convention of 1884; but this Convention ex-
pressly declares that its stipulations shall not in any way affect the
liberty of action of belligerents.” The Hague Regulations also pro-
hibit a belligerent from seizing or destroying cables connecting occu-
pied territory with neutral territory, except in the case of absolute
necessity and then subject to an obligation of restoration and in-
demnity. Beyond this there are no settled rules. The Institute of
International Law, indeed, in 1902, adopted a series of resolutions
on the subject, which appear to command a general approval, except
perhaps in one particular. In the light of these and the somewhat
limited practice of recent times, the following conclusions appear to
be warrantable:-(1) When a cable unites neutral territories it can
not be cut or otherwise interfered with. This is universally acknowl-
edged, and has so far been respected in practice. (2) Where a cable
unites two parts of the territory of one belligerent, the other belliger-
ent may cut it, either on the high sea or in any other place except
536
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
neutral waters. So, in the Spanish-American War of 1898 the Ameri-
can commanders cut various cables connecting different parts of
Cuba. (3) Where 'a cable unites the territories of the two bel-
ligerents, each is entitled to cut it anywhere except in neutral
waters. So, during the Russo-Turkish war of 1877, the cable con-
necting Constantinople with Odessa was cut by the Turks. But
in the Spanish-American War, cable communication between Havana
and Key West was allowed to continue subject to military censorship
at either end. (4) When the cable unites the territory of one belliger-
ent with that of a neutral State, the other belligerent may cut it only
in the territorial waters of the former; although, according to the
rules proposed by the Institute, it may also be cut on the high sea,
provided the place at which it is cut lies within the limits of an estab-
lished blockade. In the Spanish-American War the American com-
manders cut, in the enemy waters all the cables uniting the enemy
and neutral countries which they were unable to control; including
that between Hongkong and Manila, and that between Cuba and
Jamaica, nearly all of these being the property of neutrals; and this,
as we have seen, without any admission of liability. The question of
belligerent rights in this connection is so important that it will prob-
ably come under consideration at the next Hague Conference.
Cobbet, pt. II, pp. 269, 270.
18. As soon as possible, and without detriment to the principal
operations in which you are engaged, you will endeavor to proceed to
the destruction of submarine cables exclusively connecting enemy pos-
sessions.
19. You will respect cables exclusively connecting two neutral coun-
tries.
20. As to cables which, coming from a neutral country, ground upon
enemy territory or cross it, you will put them out of service every-
where except in neutral territorial waters if they are susceptible of
being used by the belligerent for the immediate conduct of his
opera-
tions of war.
21. In none of these cases are you to take into account the national-
ity of the company or association owning the cable.
French Naval Instructions, 1912, secs. 18–21.
As to 1, the necessity of interrupting, in many cases, railway, postal,
and telegraph communication, of stopping them or, at the least,
stringently supervising them, hardly calls for further proof. Human
feeling on the part of the commanding officer will know what limits to
fix, where the needs of the war and the necessities of the population
permit of mutual accommodation.
German War Book, p. 152.
INTERFERENCE WITH COMMUNICATION.
537
72. Existing treaties for the protection of the submarine cable shall
in no way infringe upon the freedom of action of the belligerents.
73. Submarine cables connecting any occupied territory with a neu-
tral territory may only in case of absolute necessity be seized or de-
stroyed. After the conclusion of peace they must likewise be returned
and the indemnification settled.
Austro-Hungarian Manual, 1913, secs. 72, 73.
74. In the case of mobilization or of war, the international tele-
graph and wireless telegraph service will be either absolutely sus-
pended or suspended only on certain lines and for certain kinds of
correspondence, either for a definite or for an indefinite period of
time.
Austro-Hungarian Manual, 1913, sec. 74.
The Atalanta, 1808, 60, Rob. 440.—Lord Stowell said: “That the
simple carrying of dispatches between the colonies and the mother
country of the enemy is a service highly injurious to the other bellig-
erent is most obvious. In the present state of the world, in the hostili-
ties of European powers, it is an object of great importance to pre-
serve the connection between the mother country and her colonies; and
to interrupt that connection, on the part of the other belligerent, is
one of the most energetic operations of war. The importance of keep-
ing up that connection, for the concentration of troops, and for vari-
ous military purposes, is manifest; and I may add, for the supply of
civil assistance, also, and support, because the infliction of civil dis-
tress for the purpose of compelling a surrender forms no inconsider-
able part of the operations of war. It is not to be argued, therefore,
that the importance of these dispatches might relate only to the civil
wants of the colony, and that it is necessary to show a military tend-
ency; because the object of compelling a surrender being a measure of
war, whatever is conducive to that event must also be considered in the
contemplation of law as an object of hostility, although not produced
by operations strictly military. How is this intercourse with the
mother country kept up in time of peace? by ships of war or by pack-
ets in the service of the State. If a war intervenes and the other bel-
ligerent prevails to interrupt that communication, any person step-
ping in to lend himself to effect the same purpose, under the privilege
of an ostensible neutral character, does, in fact, place himself in the
service of the enemy State, and is justly to be considered in that char-.
acter; nor let it be supposed that it is an act of light and casual im-
portance. The consequence of such a service is indefinite, infinitely
beyond the effect of any contraband that can be conveyed. The carry-
ing of two or three cargoes of stores is necessarily an assistance of a
limited nature; but in the transmission of dispatches may be conveyed
110678—19-
-35
538
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the entire plan of a campaign that may defeat all the projects of the
other belligerent in that quarter of the world. It is true, as it has been
said, that one ball might take off a Charles the XIIth, and might pro-
duce the most disastrous effects in a campaign; but that is a conse-
quence so remote and accidental that, in the contemplation of human
events it is a sort of evanescent quantity of which no account is taken;
and the practice has been, accordingly, that it is in considerable
quantities only that the offense of contraband is contemplated. The
case of dispatches is very different; it is impossible to limit a letter
to so small a compass as not to be capable of producing the most im-
portant consequences in the operations of the enemy. It is a service,
therefore, which, in whatever degree it exists, can only be considered
in one character, as an act of the most noxious and hostile nature.
“This country, which—however much its practice may be misrepre-
sented by foreign writers, and sometimes by our own—has always
administered the law of nations with lenity, adopts a more indulgent
rule, inflicting on the ship only a forfeiture of freight in ordinary
cases of contraband. But the offense of carrying dispatches is, it has
been observed, greater. To talk of the confiscation of the noxious
article, the dispatches, which constitutes the penalty in contraband,
would be ridiculous. There would be no freight dependent on it, and
therefore the same precise penalty can not, in the nature of things, be
applied. It becomes absolutely necessary, as well as just, to resort to
some other measure of confiscation, which can be no other than that
of the vehicle."
A
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
In order to favour commerce on both sides as much as possible, it
is agreed that, in case a war should break out between the said two
nations, which God forbid, the term of nine months after the
declaration of war shall be allowed to the merchants and subjects
respectively on one side and the other, in order that they may with-
draw with their effects and movables, which they shall be at liberty
to carry off or to sell where they please, without the least obstacle; nor
shall any seize their effects, and much less their persons, during the
said nine months; but on the contrary, passports which shall be
valid for a time necessary for their return, shall be given them for
their vessels, and the effects which they shall be willing to carry with
them. And if anything is taken from them, or if any injury is done
to them by one of the parties, their people and subjects, during the
term above prescribed, full and entire satisfaction shall be made to
them on that. account. The above-mentioned passports shall also
serve as a safe conduct against all insults or prizes which privateers
may attempt against their persons and effects.
Treaty of Amity and Commerce of 1783 between the United States and
Sweden, Article XXII.
a safe conduct shall be given them [citizens of the one
country who are in the other country at the breaking out of the war
between the two countries,] to embark at the ports which they shall
themselves select.
Treaty of Friendship, Commerce, and Navigation of 1859 between the
United States and Paraguay, Article XIII.
and a safe conduct shall be given them [the citizens of
the one country who are in the other country at the time of an inter-
ruption of friendly intercourse or of a rupture] to embark at the
port which they themselves shall select.
Treaty of Friendship, Commerce, and Navigation of 1864 between the
United States and Honduras, Article XI.
Safe conduct or passport.
Some of these usages appear to deserve a fuller consideration. A
Safe Conduct, or Passport, is a privilege which ensures safety to
those who hold it while passing or repassing from one place to an-
other, or while occupied in the performance of some act specified in,
and permitted by the instrument. Such an instrument must emanate
539
540
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
from the supreme authority upon the spot, that is, from the officer
in command, to whom the sovereign has for these and other purposes
delegated his power, either by express commission or as the natural
consequences of other powers.
Phillimore, vol. III, pp. 165, 166.
The grantor of the safe conduct tacitly pledges himself both to
protect the grantee and to punish any person subject to his command
who may violate it. A safe conduct, strictly construed, does not in-
clude more than one person and his reasonable baggage, unless the
terms of the instrument expressly admit more.
Phillimore, vol. III, p. 166.
Transferrence of privilege.
The safe conduct for the person cannot be transferred from one
man to another; the abuses which might flow from such a permission
are manifest. But the safe conduct for goods admits of their being
removed by some person other than their owner, unless there be some
specific objection against the person employed.
The extent of the safe conduct must of course be limited by the ex-
tent of the command of the grantor; it would not necessarily be lim-
ited by territorial boundary, but would, unless otherwise limited, fol-
low the grantee wherever the forces or troops of the grantor are.
Phillimore, vol. III, p. 166.
Expiration of privilege.
If a safe conduct be granted for a limited time, its virtue expires
with the expiration of this time; but if the grantee has been prevented
by sickness, or some cause over which he has no control, from returri-
ing within the time, the spirit of the promise of security conveyed in
the instrument protects him. The case, as Vattel remarks, is different
from that of an enemy coming into a country during a truce; to him
no particular promise has been made; he has, at his own peril, taken
advantage of a general liberty allowed by the suspension of hostilities;
all that has been promised to him is forbearance from hostilities dur-
ing a certain period; it may be a matter of importance to his enemy
that at the expiration of that period, the War should in all respects
freely take its course.
The safe conduct is granted by the public authorities, therefore the
grantor in fact never dies; it does not expire with the death of the
particular officer who happened to subscribe it. If the safe conduct
contains any such limitation as for such time as we shall think fit,
it is of course revocable at the discretion of the grantor; but
even without such limitation it can hardly be said to be in all circum-
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
541
stances irrevocable; circumstances subsequent to the granting of it
may render its revocation imperative, but it must be so revoked that
the grantee be allowed time and liberty to depart in safety, though a
very urgent and supervening necessity may possibly authorise his
temporary detention. But a safe conduct is not to be converted into
a snare, the safety of the bearer is at all hazards to be secured.
Phillimore, vol. III, pp. 166, 167.
Construction of language.
Safe conducts are privileges, and therefore, if any doubt arise as to
their construction, should be interpreted by the general rules appli-
cable to such grants.
But inasmuch as the right of safe passage conveyed by the instru-
ment of safe conduct is neither hurtful to a third person nor onerous
to the grantor, it should always receive a liberal construction, and the
instrument, whatever the language of it may be, must be so inter-
preted as to avoid the consequence of a manifest injustice or absurdity.
Thus, for instance, a safe conduct granted to soldiers and sailors gen-
crally must be construed to extend to all officers of the army and the
fleet. So a permission “to depart freely” must be holden to con-
tinue till the grantee arrives in a place of safety. The privilege is, in
fact, always to be so construed, as not to be useless to the grantee.
But the grantee allowed to depart is not necessarily allowed to return,
and he who is allowed to come is allowed to do so once, and not oftener,
unless there be some words relating to time which give rise to a reason-
able conjecture that such was the intention of the grantor. If per-
mission be given for other persons to accompany the grantee, describ-
ing them by some general name, such as companions, this must be
construed to exclude those whose case, is, to borrow the expression of
Grotius, more odious than that of the grantee himself; such, for in-
stance, as deserters, refugees, pirates, or robbers. If the instrument
speaks of companions, belonging to a certain nation, the expression
operates to exclude all companions who do not belong to that nation.
Phillimore, vol. III, pp. 167, 168.
A passport or safe-conduct is a privilege granted in war, and ex-
empting the party from the effects of its operation, during the time
and to the extent prescribed in the permission. It flows from the
sovereign authority; but the power of granting a passport may be
delegated by the sovereign to persons in subordinate command, and
they are invested with that power either by an express commission, or
by the nature of their trust. The general of an army, from the very
nature of his power, can grant safe-conducts; but the permission is
not transferable by the person named in the passport, for it may be
542
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
that the government had special reasons for granting the privilege
to the very individual named, and it is presumed to be personal. If
the safe-conduct be granted, not for persons, but for effects, those
effects may be removed by others besides the owner, provided no per-
son be selected as the agent against whom there may exist a personal
objection, sufficient to render him an object of suspicion or danger,
within the territories of the power granting the permission.
He who promises security, by a passport, is morally bound to afford
it against any of his subjects or forces, and to make good any damage
the party might sustain by a violation of the passport. The priv-
ilege being so far a dispensation from the legal effects of war, it is
always to be taken strictly, and must be confined to the purpose, and
place, and time, for which it was granted. A safe-conduct generally
includes the necessary baggage and servants of the person to whom
it is granted; and, to save doubt and difficulty, it is usual to enumerate,
with precision, every particular branch and extent of the indulgence.
If a safe-conduct be given for a stated term of time, the person in
whose favor it was granted must leave the enemy's country before
the time expires, unless detained by sickness, or some unavoidable
circumstance, and then he remains under the same protection. The
case is different with an enemy who comes into the country of his ad-
versary during a truce. He, at his own peril, takes advantage of a
general liberty allowed by the suspension of hostilities, and, at the
expiration of the truce, the war may freely take its course, without
being impeded by any claims of such a party for protection.
Kent, vol. I, pp. 177, 178.
Revocation of safe-conduct.
It is stated that a safe-conduct may even be revoked by him who
granted it, for some good reason; for it is a general principle in the
law of nations, that every privilege may be revoked when it becomes
detrimental to the state. If it be a gratuitous privilege, it may be
revoked purely and simply; but if it be a purchased privilege, the
party interested in it is entitled to indemnity against all injurious
consequences, and every party affected by the revocation is to be
allowed time and liberty to depart in safety.
Kent, vol. I, p. 178.
Violation of passports.
A safe-conduct or passport contains a pledge of the public faith,
that it shall be duly respected, and the observance of this duty is
essential to the character of the government which grants it. The
statute law of the United States has provided, in furtherance of the
general sanction of public law, that if any person shall violate any
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
543
safe-conduct or passport, granted under the authority of the United
States, he shall, on conviction, be imprisoned not exceeding three
years, and fined at the discretion of the court.
Kent, vol. I, p. 196.
Laws of United States.
The Congress of the United States, during the time of the Amer-
ican war, discovered great solicitude to maintain inviolate the obli-
gations of the law of nations, and to have infractions of it punished
in the only way that was then lawful, by the exercise of the author-
ity of the legislatures of the several states. They recommended to
the states to provide expeditious, exemplary, and adequate punish-
ient for the violation of safe-conducts or passports granted under
the authority of Congress, to the subjects of a foreign power in time
of war; and for
and for the commission of acts of hostility against persons in
amity or league with the United States; and for the infractions of
treaties and conventions to which the United States were a party;
and for infractions of the immunities of ambassadors and other pub-
lic ministers.
Kent, vol. I, p. 197; Journals of Congress, vii, 181.
Passport, or safe conduct.
A passport or safe conduct, is a document granting to persons or
property an exemption from the operations of war, for the time, and
to the extent prescribed in the instrument itself. The term passport
is applied to personal permissions given on ordinary occasions, both
in peace and war, where there is no reason why the parties named
in them should not go where they please; while safe conduct is the
name usually given to the instrument which authorizes an enemy, or
an alien, to go into places where he could not go without danger, or
to carry on trade forbidden by the laws of war.
The word pass-
port, however, is more generally applied to persons, and safe conduct,
to both persons and things. A passport is not transferable by the
person named in the permission, for although there were no objec-
tions to giving the privilege to him, there might be very serious ob-
jections to the individual taking his place. It, however, generally
includes the servants and personal baggage of the person to whom
it is granted, unless there should be particular objection to the pas-
sage of such servants, or to the admission of the baggage; but, to
save all doubt and difficulty in such matters, it is usual to enumerate
with precision every particular with respect to the extent of the in-
dulgence. A safe conduct for effects, without designating the person
who is to introduce or remove them, may be introduced or removed
by any agent of the owner, unless the agent selected should be per-
544
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
sonally objected to, as an object of suspicion or danger. Instru-
ments of this kind, are always to be taken strictly, and must be .con-
fined to the persons, effects, purpose, place and time, for which they
are granted. But, if the person who has received a passport should
be detained in an enemy's country by sickness or by force, beyond
the specified time, he should receive a new instrument, or be consid-
ered as still under the protection of the old one. But no detention
by business, or by circumstances not entirely unavoidable, will entitle
him to such indulgence. If, for example, he should take advantage
of a suspension of hostilities to remain, he will do so at his peril, and
if he should be found in an enemy's country at the termination of
the truce, the time named in his passport having expired, he will be
subject to the ordinary laws of war, without any claim for special
protection. Passports and safe conducts are of two kinds; those
which are limited in their effects to particular places or districts of
country, and those which are general and extend over a whole coun-
try. Those of the first class may be granted by military and naval
officers or governors of towns, to have effect within the limits of their
respective commands, and such instruments must be respected by all
persons under their authority. The power to issue such documents
is implied in the nature of their trust. But a general passport, or
safe conduct, to extend over the whole country, must proceed from
the supreme authority of the state, either directly or by an agent
duly empowered to issue it. (Vattel, Droit des Gens, liv. 3, ch. 17,
$S 265–270; Rutherforth, Institutes, b. 2, ch. 9, § 22; Kent, Com. on
Am. Law, vol. 1, pp. 162, 163; Wheaton, Elem. Int. Law, pt. 4, ch. 2,
$ 25; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 2, $$ 14-22; Phillimore,
On Int. Law, vol. 3, § 101; Puffendorf, de Jur. Nat. et Gent., lib. 8,
cap. 7, § 13; Wildman, Int. Law, vol. 2, pp. 28, 29; Rayneval, Inst.
du Droit Nati etc., liv. 3, ch. 9; Bello, Derecho Internacional, pt. 2,
cap. 9, § 4; Heffter, Droit International, § 142; Burlamaqui, Droit
de la Nat. et des Gens, tome 5, pt. 4, ch. 11; Real, Science du Gou-
vernment, tome 5, ch. 3, sec. 4; Moser, Versuch, etc., b. 10, p. 452.)
Halleck, pp. 663, 664.
Revocation.
A passport or safe conduct, may, for good reasons, be revoked by
the authority which granted it; on the general principle of the law
of nations, that privileges may always be revoked, when they become
detrimental to the state. A permission granted by an officer may,
for this reason, be revoked by his superior, but, until so revoked, it
is as binding upon the successor as upon the party who issued it.
The reasons for such revocation need not always be given; but per-
missions of this kind can never be used as snares to get persons or
effects into our power, and then, by a revocation, hold the persons as
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
545
prisoners, or confiscate the property. Such conduct would be per-
fidy toward an enemy, and contrary to the laws of war. (Vattel,
Droit des Gens, liv. 3, ch. 17, $ 276; Kent, Com. on Am. Law, vol. 1,
p. 163; Grotius, de Jur. Bel ac Pac., lib. 3, cap. 21, $ 22; Phillimore,
On Int. Law, vol. 3, § 101; Garden, De Diplomatie, liv. 6, § 16; Bello,
Derecho Internacional, pt. 2, cap. 9, 84; Burlamaqui, Droit de la Nat.
et des Gens., tome 5, pt. 4, ch. 11.)
Halleck, p. 664.
Violation of instruments.
Any violation of the good faith and spirit of such instruments
[passports and safe conducts), entitles the injured party to indem-
nity against all injurious consequences. Persons violating these in-
struments are also subject to punishment by the municipal laws of the
state by which they are issued. Section twenty-eight of the act of
congress, approved April 30th, 1790, provides that if any person shall
violate any safe conduct or passport, duly obtained and issued under
the authority of the United States, such person so offending, on con-
viction, shall be imprisoned not exceeding three years, and fined at
the discretion of the court. If a soldier or subordinate officer should
violate a passport, or safe conduct, issued by his superior, he would,
probably, also be subject to be punished for the military offense under
military law by a court martial. (Kent, Com. on Am. Law, vol. 1, p.
163; Vattel, Droit des Gens, liv. 3, ch. 17, § 276; U. S. Statutes at
Large, vol. 1, p. 118; Garden, De Diplomatie, liv. 6, § 16; Dunlop,
Digest of Laws of the U. S., p. 72; Brightly, Digest of Laws of the
U. S., p. 41.)
Halleck, p. 665.
Safe-guards.
Safe-guards are protections granted by a general or other officer
commanding belligerent forces, for persons or property within the
limits of their commands, and against the operations of their own
troops. Sometimes they are delivered to the parties whose persons
or property are to be protected; at others they are posted upon the
property itself, as upon a church, museum, library, public office, or
private dwelling. They are particularly useful in the assault of a
place, or immediately after its capture, or after the termination of
a battle, to protect the persons and property of friends from destruc-
tion by an excited soldiery. Violations of such instruments are usu-
ally punished with the utmost severity. A guard of men is some-
times detached to enforce the safety of the persons and property
thus protected. Such guards are justified in resorting to the severest
measures to punish any violation of the safety of their trust. Ar-
ticle fifty-five of the rules and articles of war of the United States,
.
546
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
approved April 10th, 1806, provides that, “whosover, belonging to
the armies of the United States employed in foreign parts, shall force
a safe-guard, shall suffer death.” A safe-guard is a particular kind
of passport or safe-conduct, and is to be construed according to the
rules of interpretation applicable to such instruments. (Garden, De
Diplomatie, liv. 6, § 16; Martens, Precis du Droit des Gens, $ 292;
Phillimore, On Int. Law, vol. 2, pp. 28, 29; U. S. Statutes at Large,
vol. 2, p. 366; U. S. Army Regulations of 1857, SS 769–773; Rayneval,
Inst. du. Droit Nat., etc., liv. 3, ch. 9; Heffter, Droit International,
$ 142; Real, Science du Gouvernement, tome 5, ch. 3, sec. 4; Brightly,
Digest of Laws of U. S., p. 78; Dunlop, Digest of Laws of U. S.,
p. 381.)
Halleck, pp. 665, 666.
Passports, safe-conducts, and licenses, are documents granted in
war to protect persons and property from the general operation of
hostilities. The competency of the authority to issue them depends
on the general principles already noticed. This sovereign authority
may be vested in military and naval commanders, or in certain civil
officers, either expressly, or by inevitable implication from the nature
and extent of their general trust. Such documents are to be inter-
preted by the same rules of liberality and good faith with other acts
of the sovereign power.
Wheaton, p. 501.
+
Passports and safeguards, or safe conducts, are letters of protec-
tion, with or without an escort, by which the person of an enemy is
rendered inviolable. These may be given in order to carry on the
peculiar commerce of war, or for reasons which have no relation to
it, which terminate in the person himself. As, like licenses, they are
exceptions to the non-intercourse of war, they are stricti juris, as far
as relates to the person, the time of his sojourn, his route and resi-
dence, and in a degree to his effects and attendants. If he remain
beyond the prescribed time with no inevitable necessity from illness
or other cause, he can be treated as a captive. If he is discovered in
intrigues his passport is vitiated. If he acts as a spy, of course he
forfeits the right of protection; for he is thus committing an act of
hostility, whether the officer who gave him the passport is privy to
his designs or not. Arnold's pass could be of no avail to André
when once his true character was brought to light.
Woolsey, pp. 256, 257.
Passports and safe conducts.
Passports are written permissions given by a belligerent to sub-
jects of the enemy whom he allows to travel without special restric-
tions in the territory belonging to him or under his control. Safe-
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
547
conducts are like permissions under which persons to whom they are
granted may come to a particular place for a defined object. Pass-
ports, being general, must be given by the government or its duly
appointed agents; safe conducts may be conceded either by the gov-
ernment or by any officer in military or naval command in respect
of places within his district, but in the latter case they may be re-
scinded by a higher authority; and both passports and safe-conducts
may be annulled by the person who has given them, or by his superior,
whenever owing to any change of circumstances their continued use
has in his judgment become dangerous or inconvenient. When this
is done, good faith obviously requires that the grantee who has
placed himself in the grasp of his enemy under a promise of im-
munity shall be allowed to withdraw in safety; it is not necessary
however that he shall be permitted to retire in a direction chosen by
himself if he has a passport, or in that contemplated by his safe-con-
duct; his destination and his route may be fixed for him. Neither
passports nor safe-conducts are transferable. When they are given
for a certain time only, but from illness or other unavoidable cause
the grantee is unable to withdraw from the hostile jurisdiction before
the end of the specified term, protection must be extended to him for
so long as is necessary; if, on the other hand, he voluntarily exceeds
prescribed limits of time and place he forfeits the privileges which
have been accorded to him, and he may be punished severely if it can
be shown that he has taken advantage of the indulgence which he
has received for improper objects.
Hall, p. 564.
of war.
Safeguard.
A safeguard is a protection to persons or property accorded as a
grace by a belligerent. It may either consist in an order in writing,
or in a guard of soldiers charged to prevent the performance of acts
The objects of such protections are commonly libraries,
museums, and buildings of like nature, or neutral or friendly
property; sometimes they are granted to an enemy as a special mark
of respect. When a safeguard is given in the form of soldiers, the
latter cannot be captured or attacked by the enemy.
Hall, p. 575.
Passport or safe conduct.
A passport or safe conduct is a document granting persons or
property a specified exemption for the time being from the operations
of war. The term passport is applied to personal permission given
to friends on ordinary occasions, both in peace and war, to go where
they wish; while the term safe conduct is usually given to an au-
thority to an enemy or an alien to go into places where they would
548
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
otherwise be in danger or to carry on a trade forbidden by the laws
of war. The word passport, however, is more generally applied to
persons, and safe conduct to both persons and things.
Moore's Digest, vol. VII, p. 320.
General Scott, referring to approaching meeting of the new Fed-
eral Congress, after his capture of the City of Mexico, says: “I have
seen and given safe conduct through this city to several of its mem-
bers." He also gave Santa Anna's wife a passport to enable her to
follow her husband.
Moore's Digest, vol. VII, p. 320; Scott, Autobiography, II, 532, 537.
Safeguards.
Safeguards are protections granted by a general or other officer for
persons or property within the limits of his command against the
operations of his own troops. Sometimes they are delivered to the
parties whose persons or property are to be protected; at others,
they are posted upon the property itself, as upon a church, museum,
library, public office, or private dwelling. They are particularly
useful in the assault of a place, or immediately after its capture, or
after determination of a battle, to protect persons and property of
friends from destruction by an excited soldiery. Violations of such
instruments are usually punished with the utmost severity. A guard
of men is sometimes called a safeguard when detached to enforce the
safety of the persons and property of those protected. “A safeguard,
when used to denote a kind of passport or safe conduct, is to be con-
strued according to the rules of interpretation applicable to such
instruments.
Moore's Digest, vol. VII, p. 321.
Expelled aliens.
The detention or expulsion of citizens of the enemy nation can be
justified only for military reasons, and when expelled they must have
safe conduct through the lines.
Taylor, p. 462.
A belligerent often grants to enemy individuals a “passport”, en-
abling them to pass unmolested through districts occupied by his
forces. A “safe-conduct” has the same effect, but is applicable also
to the carriage of goods, as is a "license."
A“safe-guard” is a notification by a belligerent Commander that
buildings or other property upon which the notification is usually
posted up, are exempt from interference on the part of his troops.
The term is also used to describe a guard, placed by the Commander to
ensure such exemption. “Forcing a safe-guard” is a serious offence.
Cf. the Army Act, s. 6 (c).
Holland, pp. 51, 52.
t
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
549
Safe conduct or passport.
A“ safe-conduct” or “ passport” is a written authority issued by a
commander to one or more individuals, allowing him or them to pass
through districts occupied by his forces. The terms appear to be con-
vertible, though some would make the “passport" confer a more
extended liberty of movement than the “safe-conduct,” which they
would confine to an authority to come to a specified place for a speci-
fied object. At any rate, a passport or safe-conduct may be given by a
commander in respect of the country or district under his command.
It has, of course, no effect upon the other belligerent. It is a personal
authority and is not transferable by the grantee to another; hence the
photograph of the grantee is sometimes annexed to it. It is revocable
by the grantor or a higher official, but good faith demands that it shall
not be withdrawn to the detriment of the grantee unless it has been
abused. If circumstances require the revocation of the passport, the
holder should be allowed to retire in safety, but not necessarily by the
route chosen by himself. It may be given either to combatants or to
non-combatants. Safe-conducts were given to the Boer leaders in
April and May, 1902, to allow them to confer about surrender; the war
was prosecuted while the negotiations were in progress, notwithstand-
ing the absence of the Boer generals from their commandos. There is
no stereotyped form for passports or safe-conducts; they would prob-
ably be usually couched in some such terms as the following safe-con-
duct which was given to a non-combatant by the Japanese in the war
with Russia-
SAFE-CONDUCT.
.
Jokan Fewari, hospital attendant of the Red Cross detachment of the trading
community of Moscow. The above-mentioned person, forming part of the medical
personnel as aforesaid, is authorised to return. Certified by the Japanese army
near Ta-Mou-Tcheng.
Spaight, p. 230; Ariga, p. 200.
Safeguard.
A“ safeguard” is “ a notification by a belligerent commander that
buildings or other property, upon which the notification is usually
posted up, are exempt from interference on the part of his troops; but
the term is also used to describe a guard placed by the commander to
ensure such exemption.” The French call the first kind of safeguard
morte, the second vive. “ Soldiers employed as a safeguard are guar-
anteed against the application of the laws of war and if the enemy
occupies the locality it is usual to send them back to the army to which
they belong"; and in such a case their arms and baggage accompany
them. The object of a safeguard is generally to protect museums,
historic monuments or the like; occasionally to show respect for a dis-
tinguished enemy, as in the case of the safeguard which McClellan
550
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
placed over Mrs. R. E. Lee's residence, White House, Virginia, in
1862. When the allies invaded France in 1814, the Emperor Alexan-
der of Russia honoured himself and Poland by his graceful act in
assigning a guard of honor of Polish soldiers to protect the house of
Kosciusko—then living, almost as a peasant, near Troyes--from pil-
lage and contribution.
Spaight, p. 231; Holland, Laws and Customs of War, pp. 44, 45; Bonfils,
§ 1247; Pillet, p. 360.
Safe conduct for goods.
A safe-conduct for goods, sometimes called a "license” is not per-
sonal to the grantee but passes with the goods, provided the trans-
feree is approved by the authorizing belligerent. Like a passport,
it only binds the army of the belligerent who issued it.
Spaight, p. 231.
Passports and safe-conducts.
Passports are written permissions given by a belligerent to enemy
subjects, or others, allowing them to travel within that belligerent's
territory or enemy territory occupied by him. Safe-conducts are
written permissions given by a belligerent to enemy subjects, or
others, allowing them to proceed to a particular place for a defined
object, for instance, to a besieged town for conducting certain nego-
tiations; but safe-conducts may also be given for goods, and they
then comprise permission to carry such goods without molestation to
a certain place. Passports as well as safe-conducts make the grantee
inviolable so long and in so far as he complies with the conditions
specially imposed upon him or made necessary by the circumstances
of the special case. Passports and safe-conducts are not transferable,
and they may be granted to enemy subjects for a limited or an un-
limited period; in the former case their validity ceases with the ex-
piration of the period. Both may be withdrawn, not only when the
grantee abuses the protection, but also for military expediency. It
must, however, be specially observed that passports and safe conducts
are only a matter of International Law when the granting of them
has been arranged between the belligerents or their responsible
commanders, or between belligerents and neutral Powers. If they are
granted without such an arrangement, unilaterally on the part of
one of the belligerents, they fall outside the scope of International
Law.
Oppenheim, vol. II, pp. 276, 277.
Safeguards.
Belligerents on occasions arrange between themselves that they
shall grant protection to certain of each other's subjects or property
against their own forces in the form of safeguards, of which there
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
551
are two kinds. One consists in a written order given to an enemy
subject or left with enemy property and addressed to the commander
of armed forces of the grantor, in which the former is charged with
the protection of the respective individual or property, and by which
both become inviolable. The other kind of safe-guard is given by
detailing one or more soldiers to accompany enemy subjects or to
guard the spot where certain enemy property is, for the purpose of
protection. Soldiers on this duty are inviolable on the part of the
other belligerent; they must neither be attacked nor made prisoners,
and they must, on falling into the hands of the enemy, be fed, well
kept, and eventually safely sent back to their corps. As in the case
of passports and safe-conducts, it must be specially observed that
safeguards are only a matter of International Law when the grant-
ing of them has been arranged by the belligerents, and not other-
wise; except in the case of the safeguards mentioned by article 8,
No. 2, of the Geneva Convention of 1906, who, according to articles
9 and 12 of that Convention, are inviolable.
Oppenheim, Vol. II, p. 277.
The next subjects to be considered in connection with the relaxa-
tions of the strict rule of non-intercourse in warfare may be dealt
with under the head of
Passports, safe-conducts, and safeguards.
Passports are granted by a belligerent government, and are gen-
erally made to apply to all territory in its control, whether under its
sovereignty or under its military occupation. They are permissions
to travel within such territory, given to enemy subjects who have
satisfied those in authority that their objects in making the visit are
innocent. Safe-conducts are granted either by a belligerent govern-
ment, or by its naval and military officers. They apply to a par-
ticular place only, and any commander may grant them in the area
under his control. Both passports and safe-conducts are revocable
for good reason; but if they are revoked the grantee should be al-
lowed to withdraw in safety. A limit of time may be named in these
instruments, and a special purpose may be mentioned as the only one
for which the permission is given. Whatever conditions are im-
posed must be carefully complied with, and both sides are held to the
strictest good faith. A safe conduct may be given in respect of
goods only, in which case it is a permission to remove them without
restriction as to the agent, but with an implied condition that he
shall not be dangerous or otherwise obnoxious to the grantor. It is
always understood that neither passports nor safe-conducts are trans-
ferable. Safeguards are grants of protection given to enemy persons
552
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
or enemy property by belligerents, for the purpose of preventing any
possible license on the part of their own forces. They generally take
the form of a guard of soldiers, and these, if not withdrawn before
the place where they are stationed passes under the control of the
other side, possess immunity from attack, and must be properly
cared for and sent back to their own side. Occasionally a written
guarantee of protection is called a safeguard.
Lawrence, pp. 559, 560.
Flags of Truce, Passports.-A flag of truce is used when one bel-
ligerent desires to enter into communication with the other; the
proper symbol being a white flag. The other party is not bound to
receive the bearer in all circumstances, as where this would inter-
fere with his operations or reveal his position, although in such a
case it is usual to announce the refusal by signal. But if once re-
ceived, both the bearer and his attendants are inviolable; although
they are subject to all necessary measures of precaution, and are
liable to forfeit their privilege if they abuse their position. A pass-
port is a written permission, issued usually by or under the authority
of the belligerent Government, empowering an enemy subject to pass
into or through the belligenent lines or territory. A safe conduct is a
like permission, issued either by the belligerent Government or by a
commanding officer, authorizing the passing either of a person or of
property into some place otherwise prohibited.
Cobbett, pt. II, p. 100.
Safe-conduct as to persons.-A safe-conduct is a document given
to an enemy, alien, or other person or persons by a commander of
belligerent forces authorizing him or them to go into places which
they could not reach without coming into collision with armed forces
actively operating against the enemy.
U. S. Manual, p. 100.
>
Passport defined.--A passport is a written document given to a
person or persons by a commander of belligerent forces authorizing
him or them to travel unmolested within the district occupied by his
troops.
U. S. Manual, p. 100.
Safe-conduct as to goods.--A safe-conduct is a written authority
or license to carry goods to or out of, or to trade in a certain place
or places otherwise forbidden by the laws of war, given by a com-
mander of belligerent forces to an enemy, alien, or other person.
U. S. Manual, p. 100.
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
553
Character of these instruments.-Both passports and safe conducts
fall within the scope of international law when granted by arrange-
ment with the enemy or with a neutral power. The passports and
safe-conducts as to persons are individual and nontransferable. A
safe-conduct for goods, while restricted to the articles named in them,
may be transferred from one person to another, provided it does not
designate who is to carry the goods or to trade. They may be trans-
ferred when the licensee is designated if the transferee is approved by
the authorizing belligerent. The term “ pass” is now frequently
used instead of the older term “passport," and likewise the word
permit.” The word pass being used for a general permission
to do certain things, the word “permit” being used like the word
safe-conduct,” to signify permission to do a particular thing.
U. S. Manual, pp. 100–101.
66
66
May be revoked.-Passports and safe-conducts may be revoked by
the commander issuing them or by his superior for reasons of mili-
tary expediency, but, until revoked, they are binding upon grantors
and their successors. When a time is specified in the document it is
valid only during such time. These documents should not be re-
voked for the purpose of securing the persons of the holders who
should be given time to withdraw in safety; in case of violation of
their terms the privilege will be withdrawn and the case investi-
gated. They are valid in the district of the commander who grants
them only.
U. S. Manual, p. 101.
Safeguard.—A safeguard is a detachment of soldiers posted or de-
tailed by a commander of troops for the purpose of protecting some
person or persons, or a particular village, building, or other prop-
erty. The term “safeguard” is also used to designate a written
order by a commander of belligerent forces for the protection of an
enemy subject or enemy property. It is usually directed to the suc-
ceeding commander requesting the grant of protection to such indi-
viduals or property.
U. S. Manual, p. 101.
The object of a safeguard is usually to protect museums, historic
monuments, etc. A case of this which caused much discussion was the
action of Gen. McClellán in placing a safeguard over the residence
of Mrs. R. E. Lee in 1862. McClellan's Own Story, p. 360; Spaight,
War Rights on Land, p. 231.
The French call the first kind vive and the second mort. “It is
called dead (mort) or alive (vive) according to whether it consists
110678–19-
-36
554
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
in the simple posting of a notice showing the protection given to the
establishment or, when, in order to insure the efficacy of the exemp-
tion accorded, there is placed over it a body of troops charged with
enforcing the order.” Les Lois, Jacomet, art. 139.
U. S. Manual, pp. 101, 102, note.
Inviolability of soldiers as safeguards.-Soldiers on duty as safe-
guards are guaranteed against the application of the laws of war,
and it is customary to send them back to their army when the locality
is occupied by the enemy, together with their baggage and arms, as
soon as military exigencies permit.
U. S. Manual, p. 102.
A passport is a document given by a commander of belligerent
forces to enemy subjects or others to enable them, within a limited
or unlimited period, to travel free and unmolested within the dis-
trict occupied by his forces. The passport may permit the bearer to
travel either alone or accompanied by friends, and with or without
servants and effects.
Passports may be granted by a commander on his own initiative,
or by arrangement with the enemy or with a neutral Power, and only
if granted by such arrangement do they come within the scope of In-
ternational Law.
Edmonds and Oppenheim, arts. 326, 327.
A safe-conduct is a document given by a commander of belligerent
forces to enemy subjects or others authorizing them, during a lim-
ited or unlimited period, to go into places which they could not reach
without coming into collision with armed forces actively operating
against the enemy-for instance, to visit or leave a besieged town.
A safe-conduct may, however, also be given to goods, and it com-
prises then the permission for such goods to be carried unmolested
from or to a certain place--for instance, from or into a besieged
town. Just as passports, safe-conducts only fall within the scope of
International Law when granted by arrangement with the enemy or
a neutral Power.
Edmonds and Oppenheim, arts. 328, 329.
The expressions “pass” and “permit” have in recent years been
employed in the place of the older terms with, as a rule, the same
distinction, although “pass” has sometimes had the signification of a
general permission to do certain things, while “permit” has been
confined to permission to do a particular act.
The exact term used, however, is of no great importance, provided
that every particular with regard to the extent of the indulgences
conferred by the document is enumerated with precision in it. The
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
555
person to whom it is granted is inviolable as long and in so far as he
strictly complies with the conditions imposed upon him.
Edmonds and Oppenheim, arts. 330, 331.
Passports, as well as safe conducts, may be revoked for good rea-
sons of military expediency by the authority who issued them or his
superior. Until revoked they are binding upon the person who
granted them, as well as upon the successors. The reasons for revo-
cation need not be given, but revocation must never be used as a
means of securing the person of the holder, who is always to be
allowed to withdraw in safety. Such passports and safe-conducts as
have been granted only for a limited time cease to be available with
the expiration of the period designated.
If the holder commits any wrongful act, such as using the oppor-
tunity given by a passport or safe-conduct to obtain military infor-
mation, or exceeds the terms of indulgence, the privilege may be
withdrawn. Further, if the holder is considered by any person in
authority to be behaving in a suspicious or irregular manner he may
be arrested and the case investigated.
Edmonds and Oppenheim, arts. 333, 334.
A safeguard is a party of soldiers posted or detailed by a com-
manding officer for the purpose of protecting some person or persons,
or a particular village, mansion, or other property. Safe-guards,
like passports and safe-conducts, only fall within the scope of Inter-
national Law when posted by arrangement with the enemy.
Soldiers on duty as safeguards are inviolable on the part of the
enemy, and it is customary, if they fall into his hands, to send them
back to their army as soon as military exigencies permit. Enemy
safeguards which have been posted without previous arrangement
ought, nevertheless, to be treated in the same way, provided that the
circumstances of the case prove that their posting was bona fide.
The term “safeguard” is also employed to mean a written order
left by an advancing commander with an enemy subject, or posted
upon enemy property, requesting the succeeding commander to grant
protection to the individual or property concerned.
Edmonds and Oppenheim, arts. 335, 336, 337.
1. Letters of safe-conduct, for persons, can only be given to such
persons as are certain to behave peaceably and not to misuse
them for hostile purposes; letters of safe-conduct for things
are only to be granted under a guarantee of their not being
employed for warlike purposes.
2. The safe-conducts granted to persons are personal to them, i. e.,
they are not available for others. They do not extend to their
companions unless they are expressly mentioned.
556
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
An exception is only to be made in the case of diplomatists of
neutral States, in whose case their usual entourage is as-
sumed to be included even though the members are not spe-
cifically named.
3. The safe-conduct is revocable at any time; it can even be alto-
gether withdrawn or not recognized by another superior, if
the military situation has so altered that its use is attended
with unfavorable consequences for the party which has
granted it.
4. A safe-conduct for things on the other hand is not confined to
the person of the bearer. It is obvious that if the person of
the bearer appears at all suspicious, the safe-conduct can be
withdrawn. This can also happen in the case of an officer
who does not belong to the authority which granted it. The
officer concerned is in this case fully responsible for his pro-
ceedings, and should report accordingly.
German War Book, pp. 140, 141.
By a regulation of the Department of State of Aug. 19, 1861, “ no
person was allowed to go abroad from a port of the United States
without a passport either from this Department or countersigned by
the Secretary of State, nor any person allowed to land in the United
States without a passport from a minister or consul of the United
States, or, if a foreigner, from his own Government, countersigned
by such minister or consul.” In order to facilitate the execution of
this regulation, Oscar Irving and Jonathan Amory, respectively dis-
patch agents at New York and Boston, were also appointed, Aug. 22,
1861, agents for the issuance of passports, and were provided with
forms, signed in blank. Sept. 12, 1861, E. L. O. Adams was ap-
pointed confidential agent of the Department of State at Portland,
Me., with authority to issue passports. He was instructed, however,
that the chief object of his appointment was to prevent persons in the
insurgent service from going to and from Canada. Any such per-
sons, if he knew them, or if he received a report of them from the De-
partment of State, by letter or telegram, he was to cause to be ar-
rested and sent to Fort Lafayette, New York. Applications for
passports, from notaries and other persons, made to the Department
of State, continued to receive the attention of the Department as
before. The passport agents were instructed to issue passports only
on the applications of the persons desiring them; and to issue them
gratis. Passports were noť required, however, in the case of persons
going to the British provinces; but all passengers for foreign ports,
except Irish and Germans of the poorer classes, were required to ob-
tain them before leaving the country.
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
557
Till the act of March 3, 1863, by which permits to leave the country
were authorized to be given to aliens who had by the conditions of
their sojourn become subject to military duty, passports were issued
by the Department of State and its agents only to citizens of the
United States. Aliens were required to obtain passports from their
own governments or their agents. Holders of foreign passports de-
siring to leave the country were required to send them to the De-
partment of State to be countersigned; but persons who had declared
their intention to become citizens of the United States, if they were
unable to obtain passports from the ministers or consuls of their
native country, were allowed to embark without molestation, unless
the chief of police at the place of embarcation should in a particular
case object. In the case of Bavarians, notarial certificates, counter-
signed by their consul, who had no authority to issue passports, were
recognized; and instructions were given to make a like exception in
any similar case. Nov. 25, 1861, notice was given of the discontinu-
ance of the practice of requiring foreign passports to be counter-
signed, or viséed at the Department of State, and the duty was dele-
gated to the passport agents. The American consul-general at Mont-
real was authorized to visé the passports of British subjects leaving
Canada for the United States, and in January, 1862, measures were
adopted in Canada to restrict the issuance of certificates of British
nationality, having the force of passports, to the governor-general
and his authorized agents, thus taking the power from mayors of
towns, who had previously assumed in some instances to exercise it.
The'agents of the United States were enjoined to take special care
against the illegal transfer of foreign passports from one person to
another. Collectors of customs were. desired to aid in the enforce-
ment of the passport regulations.
A regulation required the “ loyalty of all Americans applying for
passports or visés to be tested under oath.” The enforcement of
this regulation was specially enjoined; but, on March 17, 1862, it
was rescinded.
Dec. 2, 1861, it was ordered that passports should no longer be re-
quired of passengers proceeding from New York by steamer to Cali-
fornia, Oregon, or Washington, via the Isthmus. The general strict-
ness, however, with which the rules were sought to be enforced may
be inferred from the fact that special instructions were given to
allow Col. Rowan, a British officer, who had been accustomed to
visit British mail steamers, in the service of his government, to con-
tinue to exercise that function.
The passport agencies at New York, Boston, and Portland wern
discontinued Feb. 24, 1862, and the function of issuing passports to
American citizens was exclusively resumed by the Department of
State.
1
558. SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Feb. 27, 1862, the agents of the Department of State, at New York
and Boston, were instructed that the order requiring passports of all
persons departing from or arriving in the United States was re-
scinded, as well as the rule requiring the countersignature, or visé,
of foreign passports.
Similar instructions were given to the agent at Portland, March 12,
1862.
“Until further notice, however, arrests will be made under the
direction of the Secretary of War of any persons who may reasonably
be suspected of treason against the United States."
March 17, 1862, a circular notice was sent out that the regulation of
Aug. 19, 1861, was rescinded.
August 8, 1862, the diplomatic and consular officers of the United
States were instructed till further notice not to issue passports to any
citizens of the United States, between the ages of 18 and 45 years, and
otherwise liable to perform military duty, whom they should have
reason to believe to have left the United States after that date.
Persons going abroad, who were liable to a draft, were required, in
accordance with the regulations of the War Department, to give
bonds, conditioned for the performance of military duty, in case they
should be drafted, or the providing of a substitute.
Sept. 27, 1862, it was stated that, under a “recent regulation," a
passport could include only the applicant, his wife, and minor chil-
dren.
Under the act of March 3, 1863, authorizing the issuance of permits
to quit the country to aliens who had become subject to military duty,
a passport for such a person was on a certain occasion sent to Mr.
Irving, the dispatch agent at New York, with instructions to hand it
over on receiving from the applicant an affidavit that he was “an able-
bodied person liable to military duty; that he is between the ages of 20
and 45 years, of foreign birth, and has declared his intention to become
a citizen of the United States, according to law, and has not been con-
victed of felony," besides a bond conditioned for the performance of
military duty.
Moore's Digest, vol. III, pp. 1015–1019 ; Mr. F. W. Seward, Act. Sec. of
State, to Mr. Irving, Aug. 18, 1863, 61 MS. Dom. Let. 412.
On the ground that persons aiding the rebellion or engaged in the
slave trade had embarked at foreign ports for ports in the loyal States,
and on arriving at such ports had engaged in unlawful practices, seiz-
ing unarmed merchant vessels, carrying on forbidden trade, and fur-
nishing information, arms, munitions and other aid and comfort to
the insurgents, the diplomatic and consular officers of the United
States were instructed, May 25, 1864, that thereafter all persons, both
citizens and foreigners, embarking for the United States, except emi-
grants, must provide themselves with passports, and, if arriving with-
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
559
out them, would be liable to examination as to their character and pur-
poses. This regulation did not apply to “ loyal citizens who reside
within loyal States, and who pass through foreign countries or prov-
inces, not having come from any port beyond the seas."
Moore's Digest, vol. III, p. 1019; Mr. Seward, Sec. of State, to Dip. &
Consular Officers, circular, May 25, 1864, MS. Circulars, I. 270.
Mr. Seward, as Secretary of State, issued, Dec. 17, 1864, the fol--
lowing circular order:
The President directs that, except immigrant passengers directly
entering an American port by sea, henceforth no traveler shall be
allowed to enter the United States from a foreign country without a
passport. If a citizen, the passport must be from this Department or
from some United States minister or consul abroad; and, if an alien,
from the competent authority of his own country, the passport to be
countersigned by a diplomatic agent or consul of the United States.
“ This regulation is intended to apply especially to persons propos-
ing to come to the United States from the neighboring British prov-
inces. Its observance will be strictly enforced by all officers, civil,
military, and naval, in the service of the United States, and the State
and municipal authorities are requested to aid in its execution. It is
expected, however, that no immigrant passenger, coming in manner
aforesaid, will be obstructed, or any other persons who may set out on
their way hither before intelligence of this regulation could reason-
ably be expected to reach the country from which they may have
started."
Circular No. 55, MS. Circulars, I. 281.
The circular was accompanied with the following rules :
“I. Passports for Canada and the adjoining British prov-
inces are issued for one year, and need not be surrendered
within that period.
“ II. Citizens of the United States, desirous of visiting Can-
ada, may take out their passports, either from United States
consulates or from this Department.
“III. United States consular agents are authorized to issue
passports, and may countersign those of foreigners.
"IV. Travelers making transit through Canada, from one
American port to another American port, must procure pass-
ports.
“V. Persons residing near the line who desire to cross and
recross daily in pursuit of their usual a vocations are 'travelers'
in the contemplation of the order, and must provide themselves
with passports.
"VI. Females and minor children traveling alone are in-
cluded in the order. When, however, husband, wife, and
เ
560
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
minor children travel together, a single passport for the whole
will suffice. For any other person in the party a separate
passport will be required.
“VII. Should any person, native or foreign, clandestinely
enter the United States in derogation of the order, the fact
should be reported to the military authorities of the district.”
In connection with these rules, see Mr. Seward, Sec. of State,
to Mr. Fessenden, Sec. of Treas., Dec. 29, 1864, 67 MS. Dom.
Let. 425; F. W. Seward, Assist. Sec. of State, to Mr. Spalding,
Dec. 27, 1864, id. 401; same to Messrs. Snow & Co., Jan. 12,
1865, id. 529.
“For your information I send herewith a copy of the new
tariff of consular fees. The consular officers in Canada are
instructed and are believed to make the same charge for pass-
ports that are made by Mr. Jackson at Halifax." (Mr. F. W.
Seward, Assist. Sec. of State, to Messrs. Snow & Co., Jan. 12,
1865, 67 MS. Dom. Let. 529.)
“ The order in question [of Dec. 17, 1864] is designed to
apply only to travelers; and persons on their way to and from
church, and their respective post-offices, and in attendance on
the sick, are not considered ... to be travelers.'»
“
(Mr.
F. W. Seward, Assist. Sec. of State, to Mr. Gillis, Jan. 25, 1865,
68 MS. Dom. Let. 12.)
The Department of State declined to grant a request of cer-
tain firms at Champlain, N. Y., that the United States officials
be instructed to allow known and worthy. inhabitants resid-
ing within the precincts of the British North American prov-
inces, and near the boundary of the United States, to pass and
repass the borders for the purpose of business transactions
with such firms, without complying with the terms of the order.
(Mr. F. W. Seward, Assist. Sec. of State, to Messrs. Whiteside
et al., Jan. 25, 1865, 68 MS. Dom. Let. 13.)
See, also, Mr. Seward, Sec. of State, to Sec. of War, Jan.
27, 1865, suggesting that persons in New York who violated
the order be committed to military custody to be tried by
court-martial. (68 MS. Dom. Let. 41.)
“Mr. Mason may be informed that no passport is needed to
cross the border into Canada; passports are only required to
enter the 'United States." (Mr. Seward, Sec. of State, to
Sec. of Treas., March 1, 1865, 68 MS. Dom. Let. 314.)
Moore's Digest, vol. III, pp. 1019, 1020.
Mr. Seward, as Secretary of State, issued to consular officers, March
15, 1865, the following order:
United States consular officers residing abroad, with the excep-
tion of those resident in Canada, are required to inform all captains
PASSPORTS, SAFE CONDUCTS, AND SAFEGUARDS.
561
of American vessels, on delivery of their papers, that, in order to
prevent the occasion of embarrassment on their arrival in this coun-
try, it is necessary that each and every passenger, other than emi-
grants, and the wife and minor children of any gentleman, accom-
panied by said gentleman, should be protected by passport duly
issued or countersigned, should such passenger be a citizen of this
country, by a diplomatic agent or consul of the United States; but
otherwise to be issued by the proper authority of the country of which
they are citizens, and countersigned by a United States diplomatic
agent or consular officer.
“Instructions have been issued to the collectors of the several ports
of entry in the United States, advising them that in all cases where
passengers arrive at any port in the United States without a proper
passport, such passengers shall not be permitted to land, nor any
permit be given for the landing of their baggage, until notice shall
have been duly given to the United States military authorities within
the district, who will dispose of such passengers and baggage under
instructions from the War Department."
Moore's Digest, vol. III, pp. 1020, 1021 ; Circular No. 56, March 15,
1865, MS. Circulars, I. 282.
In reply to a request made by a gentleman at the University of Vir-
ginia for a passport for himself and his family, Mr. Seward, in enclos-
ing a copy of the passport regulations, said: “As it is presumed that
you have been a colonel in the service of the insurgents, pursuant to a
recent order of the President, any passport which may be issued to
you will contain the condition that you do not return to the United
States without the President's permission. If you are a paroled pris-
oner, no fee will be required for the passport.
Moore's Digest, vol. III, p. 1021; Mr. Seward, Sec. of State to Mr.
Maury, Sept. 5, 1865, 70 MS. Dom. Let., 307.
1
“Lord Hawkesbury presents his compliments to Mr. Gore, and has
the honor to inform him that it will be requisite for such citizens of
the United States of America as may be desirous of proceeding from
this country to France to apply for passports at the alien office, which
passports will be granted gratis on their producing one from Mr.
Gore.”
Moore's Digest, vol. III, p. 1021 ; Lord Hawkesbury, for. sec., M
Gore, Am. commissioner, circular, Downing Street, Friday, June 10,
1803, Papers relative to the Commissioners under the 7th article of
the Treaty with England, 1794, III., MSS. Dept. of State.
Early in December, 1901, the British War Office gave notice that,
“in consequence of the establishment of martial law in all South
African ports,” no person would, except under special circumstances,
562
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
be allowed, on and after Jan. 1, 1902, to land in that country without a
permit. This permit, in the case of persons proceeding from ports in
the United Kingdom, was to be obtained from the Permit Office, 39
Victoria Street, S. W., London; and each applicant was required to
produce a certificate, signed by the agent general for the Cape Colony
or Natal, a Member of Parliament, Justice of the Peace, Banker,
Parish Priest or Minister, or Officer of H. M. forces, that he possessed
at least 100 pounds or was in a position to maintain himself on arrival
in South Africa; but subjects of foreign powers were allowed to pro-
duce satisfactory evidence to the same effect from their respective
embassies or legations in London. Persons proceeding from British
colonial ports were required to obtain like permits from the Colonial
Secretary or from some officer appointed by the Colonial Govern-
ment; while persons sailing from a foreign port were to obtain them
from the British consular officer there. In the case of a family a
separate permit was required from each son or daughter over 16 years
of age. The foregoing permits, it was expressly stated, were “arail-
able only to enable passengers to land in South Africa, and are no
guarantee that they will be allowed to proceed inland.” Permits to
proceed inland were to be applied for at the port of disembarcation:
and warning was given that there were “still thousands of persons
waiting at the coast ports for an opportunity to return to their homes."
who would probably have precedence over later arrivals."
Moore's Digest, vol. III, pp. 1021, 1022; The London Times, weekly ed..
Dec. 6, 1901, p. 778, column 4; U. S. Consular Reports, LXVIII.
“Your despatch No. 177, of the 12th ultimo, has been received. It
relates to passports for United States citizens in Guatemala, which, .
it appears, even when issued at the legation, are required to be coun-
tersigned at the foreign office. This, no doubt, for the reasons which
you assign, is an inconvenient regulation for the holders, and ab-
stractly may scarcely be warrantable in time of peace. It seems.
.
however, that that condition had not technically been reached at
Guatemala, for even the minister for foreign affairs, in his note to
you of the 10th ultimo, speaks of a decree ready for the press, raising
the state of siege, or, in other words, abolishing martial law. If cir-
cumstances had required that state to continue, its usual incidents.
including the countersigning of passports, may scarcely be regarded
as unreasonable. If, however, the regulation should in your judg-
ment be unnecessarily continued or vexatiously required, you will
temperately protest against it as unpalatable to your Government."
Mr. Fish, Sec. of State, to Mr. Williamson, No. 97, July 24, 1874, MS.
Inst. Costa Rica, XVII, 190.
Moore's Digest, vol. III, p. 1022.
स
WIRELESS TELEGRAPHY IN TIME OF WAR.
PRELIMINARY PROVISIONS.
ARTICLE 1. The air is free. States have over it, in time of peace
and in time of war, only the rights necessary for their preservation.
ARTICLE 2. In the absence of special provisions, the rules applicable
to ordinary telegraphic correspondence are applicable to wireless
telegraphic correspondence.
PART 1.-TIME OF PEACE.
ARTICLE 3. Each State has the right, in the measure necessary to its
security, to prevent, above its territory and its territorial waters,
and as high as need be, the passage of Hertzian waves whether they
issue from a government apparatus or from a private apparatus sit-
uated on land, on a vessel, or on a balloon.
ARTICLE 4. In case of prohibition of correspondence by wireless
telegraphy, the government must immediately notify the other gov-
ernments of the prohibition which it decrees.
PART II,TIME OF WAR.
ARTICLE 5. The rules accepted for time of peace are, in principle,
applicable to time of war.
ARTICLE 6. On the high sea, in the zone corresponding to the
sphere of action of their military operations, belligerents may pre-
vent the emission of waves even by a neutral subject.
ARTICLE 7. Individuals are not considered as war spies, but should
be treated as prisoners of war if captured when, in spite of the pro-
hibition of the belligerent, they transmit or receive wireless dis-
patches between the different parts of an army or of a belligerent
territory. The contrary should be the case if the correspondence is
had under false pretenses.
The bearers of dispatches sent by wireless telegraphy are assimi-
lated to spies when they employ dissimulation or ruse.
Neutral vessels and balloons which, through their communication
with the enemy, can be considered as placed at its service may be
confiscated as well as their dispatches and apparatus. Neutral sub-
jects, vessels, and balloons, if it is not established that their corre-
563
564
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
spondence was intended to furnish the adversary with information
relating to the conduct of hostilities, may be removed from the zone
of operations and their apparatus seized and sequestered.
ARTICLE 8. A neutral State is not obliged to oppose the passage
above its territory of Hertzian waves destined for a country at war.
ARTICLE 9. A neutral State has the right and the duty to close or
take under its administration an establishment of a belligerent State
which it had authorized to operate upon its territory.
ARTICLE 10. Every prohibition of communicating by wireless teleg-
raphy formulated by belligerents should be immediately brought by
them to the notice of the neutral governments.
Institute (1906), pp. 164–166.
Russian declaration, 1904.
During the Russo-Japanese war in 1904, in April, there was issued
by Admiral Alexieff a circular in regard to the use of new means of
communication by newspaper correspondents. This was particularly
aimed at certain neutral press boats which were using wireless tele-
graph in transmitting news of the war. The circular handed by the
Russian diplomatic agents to the foreign offices of various states was
reported as follows:
“I am instructed by my Government, in order that there may be
no misunderstanding, to inform your excellency that the lieutenant
of His Imperial Majesty in the Far East has just made the following
declaration: In case neutral vessels, having on board correspondents
who may communicate news to the enemy by means of improved ap-
paratus not yet provided for by existing conventions, should be
arrested off Kwangtung, or within the zone of operations of the
Russian fleet, such correspondents shall be regarded as spies, and the
vessels provided with such apparatus shall be seized as lawful prizes."
It should be observed that the Russian Government merely informs
other governments that Admiral Alexieff has issued this Declaration.
The Russian Government does not assert that it proposes permanently
to support the position taken by its lieutenant.
The French text of the Declaration was as follows:
Dans le cas où des vapeurs neutres, ayant à bord des correspon-
dants qui communiqueraient à l'ennemi des nouvelles de guerre au
moyen d'appareils perfectionnés n'étant pas encore prévus par les
conventions existantes—seraient arrêtés auprès de la côte du Kuan-
toung où dans la zone des opérations de la flotte russe-les correspon-
dants seront envisagés comme espions et les vapeurs, munis d'ap-
pareils de télégraphie sans fil—saisis en qualité de prise de guerre.
Considering the provisions of this circular in the reverse order of
their statement, the first matter is the treatment of the vessels. The
implication is that the equipment with wireless telegraphic outfit by
WIRELESS TELEGRAPHY.
565
a neutral vessel“ within the zone of operations” is sufficient ground
for the seizure of the vessel as lawful prize. If this means that the
ordinary rules of prize courts hold for such a vessel, it is difficult to
understand how an adjudication can be made. If the circular means
that such vessels, when actually engaged in communicating informa-
tion of a military character to the enemy, are guilty of unneutral
service and are liable to the penalties consequent upon such service,
the provision is clear, for such would be the offense, and the regular
penalty would be confiscation of vessels and equipment.
The attempt to bring under the rules of contraband and violation
of blockade many forms of action in time of war which have only a
remote relation to either has led to confusion, which shows the need
of further elucidation of the principles of unneutral service which
involves actual participation by service in behalf of the enemy.
Spies.—The treatment of the correspondents using wireless teleg-
raphy as spies raises further questions.
The treatment of a captured spy is usually summary and extreme,
and while article 30 of the Hague Convention respecting the Laws
and Customs of War on Land prescribes that "a Spy taken in the
act can not be puninshed without previous trial,” yet, the penalty is
usually extreme. If, then, the proclamation of the Russian admiral
is admitted as in accord with practice, the position of a newspaper
correspondent would be exceedingly dangerous when news is com-
municated to the enemy, since he might become liable to treatment as
a spy.
Both Russia and Japan are, however, parties to the above-men-
tioned convention, which defines the term “spy," in article 29, as
follows:
An individual can only be considered a spy if, acting clandestinely, or
on false pretenses, he obtains, or seeks to obtain, information in the zone
of operations of a belligerent, with the intention of communicating it to
the hostile party.
Thus, soldiers not in disguise, who have penetrated into the zone of
operations of a hostile army to obtain information, are not considered as
spies. Similarly the following are not considered as spies: Soldiers or
civilians, carrying out their mission openly, charged with the delivery of
dispatches destined either for their own army or for that of the enemy.
To this class belong likewise individuals sent in balloons to deliver dis-
patches, and generally to maintain communication between the various
parts of an army or territory.
This rule is in accord with general practice, both for land and naval
warfare. There is no basis upon which an officer in the military
service can set up a new definition. The fact that a news correspond-
ent uses in transmitting communications “improved apparatus not
yet provided for by existing conventions” does not constitute him a
spy. It is not the means of communication but the nature of the act
566
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
which determines the status of a spy. The nature of the act is clearly
set forth in the Hague Convention above quoted, and any person,
whether newspaper correspondent or other, guilty of such an act,
whatever the means used, is a spy without further proclamation or
discussion.
Conclusion as to Russian declaration. The conclusion would be,
therefore, that a vessel is not liable to seizure as prize merely from
the fact of having on board “improved apparatus” for communicat-
ing news, and that correspondents using such “improved apparatus
are not liable from the simple fact of its use to treatment as spies.
On the other hand, newspaper correspondents who act in such man-
ner as to bring themselves under the definition of spies are liable to
treatment as such without special notification in the same manner as
any other person. The vessel concerned in transmitting such in-
formation, together with its equipment for such purpose, is undoubt-
edly liable to the penalty of unneutral service, which is confiscation.
It is not possible to defend the position assumed in the Russian
circular in its present extreme form. As Kebedgy says,
L'emploi de la télégraphie sans fil par des correspondants de
journaux à la guerra a posé une question qui mérite d'être
étudiée de près. Mais nous ne pensons pas qu'on pourra jamais
approuver la décision de traiter ces correspondants comme des
espions. (Revue de Droit International. VI. p. 451.)
The manifest intent of the circular to control the action of press
agents and press boats within the zone of hostile operations is,
however, proper in view of the danger to the belligerent which may
follow unrestricted communications.
U. S. Naval War College Discussions, 1904, pp. 105–108.
Control of wireless telegraphy in time of war.
The general principles governing the relations of belligerents and
neutral are not changed by the introduction of wireless telegraphy
The burden of the conduct of the war should not be thrown upon
neutrals, nor should neutrals participate in the war.
From the nature of wireless messages, they may reach instruments
within neutral jurisdiction without any guilty participation on the
part of these within neutral jurisdiction. There is no means by
which the neutral can prevent the receipt of such messages other
than by rendering the station useless. Such action would not be
similar to that of sealing a cable connecting with belligerent terri-
tory, for the same wireless instrument may receive messages from
any source and is not, like the cable, limited to a connecting station
easily determinable. It would not be reasonable to demand that a
neutral should close a station simply because it might receive dis-
patches from a belligerent. Nor would it always be possible for a
WIRELESS TELEGRAPHY.
567
given station to determine the character of a message which it might
l'eceive, because its source might be uncertain, or if the source were
known the message itself might be apparently innocent in character.
The possibility of neutral control of wireless messages within neutral
jurisdiction would be quite different from that of control of wire
messages.
In the consideration of the treatment of submarine cables in time
of war the main question was one of interruption of a material con-
nection between two points. In wireless telegraphy interruption
may take place whether intentional or unintentional without possi-
bility of fixing clearly the responsibility for the interruption. In-
terruption or interference may be no more than temporary and prob-
ably could not be permanent. The message transmitted may not be
sent in a single direction or to a single point.
U. S. Naval War College Discussions, 1907, p. 153.
Liability of vessels transmitting messages.
The Japanese Regulations Governing Captures at Sea, 1904, give
a general list of vessels liable to capture:
Art. XXXVII. Any vessel that comes under one of the fol-
lowing categories shall be captured, no matter of what na-
tional character it is:
1. Vessels that carry persons, papers, or goods that are con-
traband of war.
2. Vessels that carry no ship's papers, or have willfully muti-
lated or thrown them away, or hidden them, or that produce
false papers.
3. Vessels that have violated a blockade.
4. Vessels that are deemed to have been fitted out for the
enemy's military service.
5. Vessels that engage in scouting or carry information in
the interest of the enemy, or are deemed clearly guilty of any
other act to assist the enemy.
6. Vessels that oppose visitation or search.
7. Vessels voyaging under the convoy of an enemy's man-of-
war.
Later these regulations state:
Art. XLVI. Vessels that are recognized to have been fitted
out for the enemy for military purposes, and the goods belong-
ing to the owners of such vessels, shall be confiscated.
Art. XLVII. Vessels ascertained to have scouted or carried
information to give benefit to the enemy or to have done any
other acts to assist him, and all goods belonging to the owners
of such vessels, shall be confiscated.
568
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Section 5 of Article XXXVII makes liable to capture, regardless
of nationality,“ Vessels that engage in scouting or carrying informa-
tion in the interest of the enemy, or are deemed clearly guilty of any
other act to assist the enemy," and Article XLVII makes such ves-
sels liable to confiscation. These regulations would certainly apply
to vessels engaged in transmitting wireless messages of a character to
assist the enemy. Such vessels would then be liable to capture and
confiscation as would the portion of the cargo belonging to the owner's
of the vessel, together with the apparatus.
U. S. Naval War College Discussions, 1907, pp. 156, 157.
erents.”
Wireless telegraphy at Chifu.
Is the toleration of this practice by China an unneutral act?
Precedent or analogy and reason are the lights to guide iis in such
an inquiry as this. Now the closest analogy is to be found in the
international status, during war, of the world's submarine cable sys-
tem. This, in great part, is equally out of a belligerent's reach; too
deep in the sea to be grappled, it equally binds belligerent and neutral
together. There is an international agreement concerning submarine
cables, but this provides only for their protection in normal times.
Article XV reads: “It is understood that the stipulations of this
Convention shall in no wise affect the liberty of action of bellig-
What liberty of action does the belligerent claim? Here
the only question in dispute relates to the right to cut a neutral-
owned cable running between hostile and neutral points beyond the
three-mile limit of the neutral state. But this does not bear upon
the problem of the wireless, for the new method has no tangible ap-
paratus except at the terminal points, which are by our supposition,
the one hostile and the other neutral. As for the cable and in neutral
waters or landed on neutral soil, it is absolutely beyond the reach
of the belligerent. Though not subject to force, is it not subject to
be sealed on demand of a belligerent on the ground of neutral obliga-
tion? In other words, is the neutral state bound to prevent one
belligerent from using freely for all purposes a cable landed within
the former's jurisdiction and which the other belligerent is unable to
interrupt?
There seems to be a disposition to impose this burden upon the
neutral. Yet to do so is surely at variance with the entire theory
of neutral obligation hitherto recognized. To carry hostile dis-
patches, to serve as a belligerent transport, for instance, are unneutral
services on the part of the neutral individual, punished by confisca-
tion of the vehicle of offense. But it is the belligerent, not the neu-
tral, by existing usage, who bears the onus of prevention. The neu-
tral is bound to prevent the use of his territory as a base of opera-
tions, to forbid the fitting out of enemy ships of war in his ports,
WIRELESS TELEGRAPHY.
569
but not to restrain enemy's dispatches or diplomatic agents or finan-
cial agents, all having, it may be, a very direct influence upon the
conduct of war. The distinction is between direct military prepara-
tion on neutral soil, like an armed expedition, and military news or
orders, a difference as wide as the poles. Moreover, if the neutral
is held bound to prevent a belligerent's use of a submarine cable
between the two—already in established use—or to allow it only
under censorship, is he not equally bound to limit the belligerent's
use of a land telegraph line establishing similar communication, and
would not neutral censorship of belligerent mails be a duty also? If
the established and safe principle be abandoned, that neutral com-
merce and communications are to be as little interfered with as the
needs of war allow, with a presumption in favor of greater rather
than less exemption, are we not launched on a path of neutral obliga-
tion which speedily and necessarily leads us to an absurd and im-
possible standard ?
If set up and in commercial use before the war, it would be very
hard to stop its use—as being an unneutral service-after Port
Arthur was beleaguered. But it was not so set up. On the contrary,
the wireless connection was devised as the only available means of
enabling Port Arthur to communicate with St. Petersburg. By it
news was sent out and orders returned. It had especial military
value, and no other value. Professor Lawrence states that the
wireless service was abolished by China in August, but this, I am
informed, is an error. Russia nearly to the end was able to impose
her will, in this, as in some other particulars, upon the Chinese
authorities. Nevertheless, in the light of reason and by the force
of analogy, China should have forbidden this use of her soil to the
belligerents from the first. By permitting it, she has committed
a breach of neutrality to the detriment of Japan.
Woolsey, Wireless Telegraphy in War, 14 Yale Law Journal, 248, 251,
quoted in U. S. Naval War College Discussions, 1907, pp. 158, 159.
>
Wireless telegraphy as a news-gathering agency.
On April 15, 1904, the Russian ambassador sent to Secretary Hay
the following communication:
I am instructed by my Government, in order to avoid every
possible misunderstanding, to inform your excellency that the
lieutenant of His Imperial Majesty in the Far East has just:
made the following declaration :
“In case neutral vessels, having on board correspondents
who may communicate war news to the enemy by means of
improved apparatus not yet provided for by existing conven-
tions, should be arrested off the coast of Kwantung or within
the zone of operations of the Russian fleet, such correspondents
1106784-19
-37
570
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
shall be regarded as spies, and the vessels provided with wire-
less telegraph apparatus shall be seized as lawful prize.”
In reply to the communication, on the same date, Secretary Hay
said:
In taking note of this declaration the Government of the United
States does not waive any right it may have in international law
in the case of any American citizen who may be arrested or any
American vessel that may be seized under it. (U. S. Foreign Rela-
tions, 1904, p. 729.)
U. S. Naval War College Discussions, 1907, p. 162.
Wireless telegraphy as a news-gathering agency.
On April 20, Earl Percy, the under-secretary of state for foreign
affairs, in answer to a question in the House of Commons, gave an
account of Admiral Alexeiff's order, which differed by a very im-
portant word from the American version. He spoke of “corre-
spondents who are communicating information to the enemy;'
whereas the phrase in the Washington telegram ran correspondents
who may communicate news to the enemy.” There is all the differ-
ence in the world between being in a position to do an act and
actually doing it. If I am left alone in my neighbour's dining-room,
I may steal his spoons; but it would be very hard if that fact alone
secured my condemnation on a charge of larceny. But let us sup-
pose for a moment that information is actually communicated to the
enemy. Then, without reference to espionage, Russia has ample
means of punishing any neutral, whether newspaper correspondent
or not, who sends to the Japanese from the theater of hostilities news
of the dispositions of the Russian fleet. The law of unneutral serv-
ice applies to him. He is in the same position as if he had carried a
dispatch for the enemy, or signaled between two of his squadrons.
His ship and apparatus are justly confiscate, together with all cargo
that belongs to him or to the owner of the vessel. These severities
might surely be deemed sufficient, even if there had been an actual
transmission of intelligence direct to the Japanese commanders.
Lawrence, War and Neutrality in the Far East, 2d ed., p. 85, quoted in
U. S. Naval War College Discussions, 1907, p. 163.
According to Scholz, solicitor for the German post-office, the fol-
lowing principle might be laid down in regard to the use of wireless
telegraphy:
A belligerent has the right to prohibit, within the zone of
hostilities to be defined by him and publicly announced, the
dissemination of information as to the whereabouts and move-
ments of his war and merchant vessels, and other warlike
measures, by means of wireless telegraphy on board neutral
WIRELESS TELEGRAPHY,
571
vessels. Violations whereby facts requiring secrecy are
divulged with the knowledge or as the result of the negligence
of the captain of the ship entail capture and condemnation
of the ship, independently of the fact whether the ship in-
tended to render aid to the hostile party. Capture is permis-
sible only within the zone of hostilities, but there during the
entire period of the war.
If the transmission by wireless telegraphy is combined with
acquisition of the information under the aggravating cir-
cumstances of espionage, the guilty persons are subject to the
punishment provided for this offense. (Drahtlose telegraphie
und Neutralität, p. 45.)
U. S. Naval War College Discussions, 1907, p. 164.
A restriction as to the locality within which the wireless system
of news gathering might operate must also be mutually agreed on
by the belligerents, to be of value, unless control of the sea lies abso-
lutely in the hands of one of them. In any case, if respected, this
restriction would make it impossible to get anything of value. While
if not respected-and could flesh and blood withstand the tempta-
tion—there comes about friction, coercion, the need of constant sur-
veillance, leakage of dangerous information.
By process of exclusion we reason, therefore, that news-gathering
by sea, with the aid of wireless, is of such a nature as to be inad-
missible in warfare, and to require entire prohibition under penalty
of confiscation. It is a service bearing an analogy to the dispatch
boat, the submarine cable, and the war correspondent, in peculiar
combination. The dispatch boat is guilty of unneutral service in
behalf of one combatant and can be confiscated by the other; the
submarine cable can be cut or worked at the belligerent end under
censorship; the war correspondent, by universal usage, is only allowed
to accompany an army subject to strict regulations. The wireless
newsgatherer, combining the dangerous qualities of all three, should
not be permitted at all.
Woolsey, Wireless Telegraphy in War, 14 Yale Law Journal, p. 254,
quoted in U. S. Naval War College Discussions, 1907, p. 164.
Opinions as to wireless service.
The wireless systems are not yet fully perfected. Certain systems
have been exclusively adopted for a period of years in some states.
The relations of one method of transmission to another are not yet
fully understood. “A private individual may possess an equipment
with which he may transmit for others messages of great importance,
or receive or interrupt government messages of great importance.
572
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
It is evident that it may not always be possible to tell the source,
the destination, or the significance of a wireless message. The
attempt to class such messages under some theory of contraband or
violation of blockade would lead to conclusions which it would be
difficult to sustain by logical processes.
In military operations wireless telegraphy has, since the South
African war, become more and more an established means of com
munication. By it, different portions of the forces can keep in com-
munication with each other or with head quarters without the danger
that wires may be cut and while moving from place to place.
The importance and use of submarine cables in maritime warfare
is materially affected by the introduction of the system of wireless
telegraphy. The regulations which were growing up in regard to
the use of cables cannot in all respects be extended to cover the use
of wireless communication.
Many neutral vessels are now equipped with wireless apparatus.
Neutral ships are permitted with few limitations to navigate freely.
The range of wireless transmission is so extensive that it may usually
pass beyond the possible area of belligerent operations over which
the belligerent has control. The neutral can in an apparently in-
nocent manner transmit information to a belligerent and may receive
certain valuable information without being open to criticism. Un-
like messages transmitted by wires, the source and destination of
wireless messages are not easily discoverable. Guilt is not easily fixed.
U. S. Naval War College Discussions, 1907, pp. 164, 165.
A neutral power is bound to watch carefully that through the wire-
less telegraph installations under its authority war dispatches, in so
far as they are to be considered as transportation prohibited by inter-
national law, are not transmitted, if the neutral power must assume,
in view of the situation of local conditions, that its installations will
be used for such dispatches. Generally speaking, the duty to refuse
private dispatches written in cipher does not exist. A neutral power
is neither authorized nor bound by virtue of its neutrality to subject
the official dispatches of another power to censorship.
When a shore or ship station for wireless telegraphy has come into
hostile power, a neutral power which knows this to be the case and
undertakes to correspond with such station is bound to regulate any
censorship going beyond the provisions of the foregoing paragraph
in such manner as to have private telegrams in cipher refused. It
is further bound to urge any private company in interest which may
be established within the territory under its sovereignty to adopt such
censorship
Scholz, Drahtlose Telegraphie und Neutralität, p. 9, quoted in U. S.
Naval War College Discussions, 1907, p. 167.
6
WIRELESS TELEGRAPHY.
573
Wireless telegraph communications are to be treated like, cables.
The belligerents must have the right to interrupt these communica-
tions between portions of the opponent's territory, or between points
of a hostile and a neutral country, by seizing floating stations-in-
cluding those belonging to neutrals, which must be returned subse-
quently—or by establishing intercepting stations.
Commander von Uslar, 181 North American Review, 187, quoted in
U. S. Naval War College Discussions, 1907, p. 170.
!
Finally, the contraband and blockade law, with its positively
formulated legal consequences, can not be applied analogously to
cases where it is less a question of commercial traffic than of direct
interference with the interests of the belligerents. When such unneu-
tral interference has taken place, the neutrality has been forfeited.
It is obvious, therefore, that the ship can not acquire immunity from
punishment upon reaching the nearest port, still less upon the trans-
mission of the news; otherwise the doors would be opened wide to
violations of neutrality.
On the other hand, unlimited liability to punishment in time of war
is not in harmony with the principles of international maritime law.
Such unlimited liability would be justified only in cases where inten-
tion of aid to belligerents can be plainly established from the ship's
behavior. In such cases she acquires the character of a hostile ship,
intended for warlike actions. But where such intention does not
exist, and these are the only cases to be considered in this connection,
the liability of the ship must be more accurately defined under the
international maritime law in its present shape. The most expedient
solution appears to me that according to which the capture of a ship
is permissible only within the “zone of hostilities,” but there during
the entire duration of the war. If a ship could acquire immunity
from punishment by leaving this zone, so that she could not be pur-
sued upon reentering it, it would compel the belligerents to extend
the zone beyond reasonable bounds. It is true that a neutral ship
which has her home port in the vicinity of this zone-which, of
course, can not embrace neutral territorial waters—may be in danger
of capture during the whole period of the war. But it should be re-
membered that a ship which, notwithstanding the prohibition issued,
lends herself to the unneutral dissemination of war news is not en-
titled to the same leniency as a ship engaged in the pursuit of her
commercial interests which violates the contraband or blockade law.
The unneutral dissemination of war news is much more closely re-
lated to the case of “prendre part aux hostilités” than to that of
prohibited transportation.
If the solution suggested is not adopted it seems to me that the only
other solution could be to consider the arrival at the home port as
574
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the point to terminate liability, for it would not be just to the inter-
ests of the belligerents if the right of repression were to cease when
the ship reaches the nearest (home or neutral) waters. But, under
this view, which would again permit “saisie au retour," such a ship
might become liable to warlike acts even in distant oceans. Limita-
tion to the “zone of hostilities” recognizes the idea of the localization
of war measures and forms perhaps the most expedient compromise
of conflicting interests.
A belligerent has the right to prohibit, within the zone of hostilities
to be defined by him and publicly announced, the dissemination of
information as to the whereabouts and movements of his war and
merchant vessels, and other warlike measures, by means of wireless
telegraphy on board of neutral vessels. Violations whereby facts
requiring secrecy are divulged with the knowledge or as the result of
the negligence of the captain of the ship entail capture and con-
demnation of the ship, independently of the fact whether the ship
intended to render aid to the hostile party. Capture is permissible
only within the zone of hostilities, but there during the entire period
of the war.
If the transmission by wireless telegraphy is combined with acquisi-
tion of the information under aggravating circumstances of espion-
age, the guilty parties are subject to the punishment provided for this
offense.
There can hardly be any doubt as to the correctness of the theory
that a neutral power cannot permit its telegraph offices to be used for
the purpose of working harm to a belligerent. It is true that a neutral
power is not bound, generally speaking, to prevent the exportation of
contraband of war by private individuals, although in the most im-
portant cases, according to the Three Rules of Washington, the con-
trary is universal law. In any event a neutral power is bound to
watch carefully that it does not itself become a carrier of contraband.
It cannot use considerations of operation, still less of privacy of tele-
grams, as a pretext for permitting the transmission of official tele-
graphic war dispatches, any more than it could allege, in case of car-
rying contraband on its national ships, that it did not have to concern
itself with the destination of the articles in question. If such were not
the case, a belligerent could use neutral telegraph installations with
out restrictions for its war dispatches, so that what is strictly pro-
hibited by the medium of mail on the sea would be permitted by tele-
graph. Hence a certain censorship follows from the duty of neu-
trality.
While the privilege of free and uncontrolled telegraphic communi-
cation with their home country, even in time of war, is generally ac-
corded diplomats and consuls, this privilege is based entirely on the
supposition that the information exchanged between a belligerent
WIRELESS TELEGRAPHY.
575
power and its representative residing in a neutral country relates to
the affairs of the neutral country, hence, that the subject of it is neu-
tral and does not affect the conduct of the war. That is not the case
where the object is to provide for an invested fortress communication
with the outside world, in particular with a representative of the
home government. In the latter case it is not a furtherance of neutral
interests, but constitutes aid to a belligerent.
When a floating telegraph station is in the service of a neutral tele-
graph company and conveys to such company important news bearing
on the war or news obtained by way of espionage, and the company
disseminates such news, the neutral state, upon learning of the case,
would be bound to interfere. But what the state is bound to prohibit
is not the unneutral manner of obtaining news outside of its sovereign
territory, but the transmission and dissemination of such news, injuri-
ous to the belligerents within the territory under its sovereignty.
Scholz, Drahtlose Telegraphie und Neutralität, pp. 7, 12, 15, 43, quoted
in U. S. Naval War College Discussions, 1907, pp. 170–172.
But în view of the possible injury which may result to belligerents
from the use of wireless telegraphy on the high seas or on neutral ter-
ritory, some concession should perhaps be made to military necessity,
provided neutral rights and interests are not seriously impaired. In-
terference with wireless messages by neutrals on the high seas might,
under certain circumstances, be permitted by belligerents, as also the
seizure and confiscation of wireless telegraphy apparatus as contra-
band of war, and neutrals should certainly.refuse to permit the use of
their territory for military purposes.
Hershey, International Law and Diplomacy of the Russo-Japanese War,
p. 123, quoted in U. S. Naval War College Discussions, 1907, p. 173.
Despagnet says:
Mais il semble difficile de ne pas reconnaître aux belligérants, sauf
dans les eaux territoriales neutres, le droit de contrôler ou même d'in-
terdire toute communication par la télégraphie sans fil, soit avec
l'ennemi, soit avec le territoire qu'ils occupent ou avec leurs navires,
puisqu'ils ont le droit de censurer les dépêches venant du théâtre des
hostilités ou même d'éloigner tout bâtiment neutre qui gêne leur
action militaire. Par analogie avec ce que l'on admet pour les
câbles sous-marins que le belligérant peut couper même entre un pays
neutre, d'une part, et l'ennemi ou lui-même, de l'autre, on doit recon-
naître qu'il peut interdire l'usage de la télégraphie sans fil dans tout
le rayon où elle peut être efficace pour saisir des informations venant
soit des armées, soit du pays adversaire.
Despagnet, Droit International Public, 3d ed., p. 848, quoted in U. S.
Naval War College Discuissions, 1907, p. 173.
576
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
There is much difficulty in determining the extent of the area of
hostile operations in a manner satisfactory to belligerents and to
neutrals. With the increasing range of guns this area has corre-
spondingly enlarged. The speed and endurance of vessels of war has
also influenced the extent of effective control. Effective scouting
has with the system of wireless telegraphy become much extended.
A wireless apparatus may be of great service even though far removed
from the immediate area of hostilities. The location of the apparatus
is not determinable as are the generally fixed termini of the wire
systems. The point at which the wireless equipment may be is not
always the important element in the transmission of the message.
The nature of the service rendered seems to be the main question.
The service may be of as much or possibly of more advantage to a
belligerent if the apparatus is several hundred miles distant, rather
than near the scene of hostilities, e. g., it may be of greatest impor-
tance for a belligerent whose forces are somewhat separated to know
a considerable time in advance of the approach of the enemy, in order
that the separated forces may be concentrated. To fix an area out-
side of which wireless service, whatever its character, is free does not
seem feasible in actual practice.
It is evident that persons who engage in the transmission of wire-
less messages cannot properly be regarded and treated as spies. (See
Situation VII, International Law Situations, Naval War College,
1904.)
It is also evident from the Chifu incident and from the tendency of
opinion that a neutral is responsible to a reasonable extent for the
establishment on its territory of stations for the operation of wireless
telegraphy. The state can accordingly exercise such control over
these stations as may seem expedient.
U. S. Naval War College Discussions, 1907, p. 173, 174.
{ t
Summary. From practice, as shown in various states, from the
opinions of the courts and of writers, from the votes of conferences
and from international agreements, it is evident that the state within
whose jurisdiction a wireless telegraph apparatus is or passes, is and
will be authorized to exercise a degree of control over its use. The
responsibility resting upon such state will be large.
In order to avoid possible complications in time of war it will be
expedient in time of war for states, whether neutral or belligerent,
to exercise control over wireless telegraphy as circumstances seem to
require. There seems to be good ground for the following general
principles of action:
1. All private wireless stations within the jurisdiction of a state
shall exist under license and subject to regulation by that state.
1
WIRELESS TELEGRAPHY.
577
2. The private stations within the jurisdiction of a state may be
closed, appropriated, or placed under . censorship by the govern-
ment in time of war.
3. Private vessels of any nationality in time of war may be re-
quired to render inoperative their wireless apparatus when within
or on entering the jurisdiction of a state, whether the state is a neu-
tral or belligerent, and the apparatus shall thus remain while the
vessel is within the state's jurisdiction unless otherwise ordered.
4. Private vessels having wireless apparatus and ignorant of the
declaration of war are entitled to notification before any penalty
shall be inflicted..
(a) A belligerent may regulate or prohibit the use of wireless
telegraph within the area of hostilities.
(b) A neutral state should use reasonable care to prevent within
its jurisdiction the unneutral use of wireless telegraph.
(c) Unneutral use of wireless telegraph on board a vessel makes
the vessel liable to the penalty of capture by a belligerent, or to con-
fiscation or sequestration of the apparatus, or of the vessel, or of both
by a neutral.
(d) A vessel intentionally aiding a belligerent by the use of wire-
less telegraph is liable to penalty until the end of the war.
U. S. Naval War College Discussions 1907, pp. 175, 176.
Questions arising in connection with the Use of Wireless Teleg-
raphy.—This invention, like that of aerial navigation, has given rise
to a variety of new questions in international law, some of which still
remain unsolved. These include: (1) The question of the right of a
belligerent to erect and use an installation of this kind on neutral ter-
ritory. This, if at any time open to doubt, is now set at rest by the
Hague Convention, No. 5 of 1907, which expressly forbids its exer-
cise by a belligerent, or its allowance by neutrals. . (2) The question
of whether the use of wireless telegraphy in circumstances similar
to those of the Haimun, can be accounted as espionage. As to this it
has already been pointed out that the claim to treat the sending of
messages by war correspondents to neutral countries for public infor-
mation as espionage is altogether unwarrantable. (3) The question of
the liability incurred by the interception at sea of wireless messages
sent by one belligerent and their communication to the other, or by
the transmission of false messages. Such acts if done by the enemy
would, of course, be quite legitimate; and, if done openly, could not
lawfully be treated as espionage. If done on a neutral private vessel
they would amount to “unneutral" or "hostile" service, according
to the nature of the employment, and would then involve the penal-
ties attaching to those forms of service respectively. If done on a
578
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
neutral warship, they would constitute a breach of neutral duty, for
which reparation and the punishment of the offenders might be de-
manded. (4) The question of the use of wireless telegraphy by a
neutral vessel for the purpose of communicating with a blockaded
port in a matter affecting the operations of war. Such a proceeding
would appear to constitute either a violation of the blockade, or an
act of“ unneutral” service, and would in any case be a lawful ground
for condemnation. (5) Finally, there is the question of the right of
belligerents to prevent neutral private vessels, on the high seas but
within the sphere of belligerent operations, from using such apparatus
for the conveying of general news. As to this, no such right is so far
established, but the imposing of restrictions similar to those attaching
to war correspondence on land would appear to be warrantable both
by reason of the necessities of the case and in the light of existing
analogiés. In effect, this would mean a right to exclude such vessels.
from an area to be defined, although capable of variation by notice,
except on condition of being licensed and of operating under the di-
rection and control of the belligerent granting the license.”
Cobbett, pt. II, pp. 459, 460.
If circumstances require and to the extent that you deem indis-
pensable, you may give notice to merchant vessels equipped with wire-
less, that are within the zone of your operations or even crossing it,
that they are forbidden:
To transmit information respecting your position or your move-
ments;
To register telegrams, either plain or in cipher, coming from your
vessel or the vessels of your naval force;
To send out signals of a nature to disturb your communications.
You will then fix by a declaration and a notification, analogous to
those concerning blockade, the geographical limits and, when neces-
sary, the limit of time or hours between which your prohibitions are
to be served.
If, in spite of your notification, the ships above referred to trans-
mit forbidden information or systematically disturb your cominuni-
cations, you will act according to the gravity and the consequences
of their acts, either as provided in Article 4 of Convention X of The
Hague for the application to maritime warfare of the principles of
the Geneva Convention, or as indicated for the second case referred
to in paragraph 55 (Unneutral Service).
You may therefore demand that these vessels depart outside the
limits fixed in your declaration, impose upon them a given direction,
detain them, even capture them, and, in any case, seize their wireless
apparatus.
WIRELESS TELEGRAPHY.
579
If search of these vessels reveals to you simply the register of for-
bidden dispatches, you may seize their register of messages, require
them to depart, fix a particular direction for them and, if you have
sufficient reason to suspect their good faith, seize their wireless
apparatus.
French Naval Instructions, 1912, secs. 119-121.
[For the provisions of Hague Convention V, 1907, relative to wire-
less telegraphy apparatus, and citations thereunder, see The Laws of
Neutrality, United States Government Printing Office, 1918, pp. 39,
91-94, and 175.1
t
AERIAL WARFARE.
t
1. Aerial war is allowed, but on the condition that it does not pre-
sent for the persons or property of the peaceable population greater
dangers than land or sea warfare.
Institute (1911), p. 171,
ARTICLE 1. Belligerent States have the right to carry out warlike
acts in any and every part of the atmosphere above their several ter-
ritories, above the open sea, and above the sea bounding their coasts.
They are forbidden to carry out hostile acts, capable of causing the
fall of projectiles or of causing damage generally, above the terri-
tories of neutral States, at whatever height, and also in the neighbor-
hood of these States within a radius determined by the force of the
cannon of the aircraft.
A belligerent's military aircraft, and also his public non-military
aircraft, may not circulate above a neutral State except with the
latter's authority. But both public and private aircraft are for-
bidden to remain above a neutral country within a certain radius of
the other belligerent's frontier. The circulation of aircraft in war
time is subject to the same restrictions as during peace.
ARTICLE 2. Privateering is forbidden in aerial as in maritime war.
Belligerents may, however, incorporate in their military forces,
private aircraft and their crews, on condition that they are placed
under the control of a duly commissioned officer and carry a dis-
tinctive, external sign of their character.
ARTICLE 3. The conversion of private aircraft into military air-
craft may be made during war in the territory or in the territorial
waters of the State to which they belong, in the territory occupied
by the troops of that State, in the open sea, and in the atmosphere not
situated above a neutral State, under the conditions laid down in the
Hague Convention of October 18, 1907, relative to the conversion of
merchant ships into war-ships.
The converted aircraft will preserve their military character dur-
ing the whole period of hostilities and cannot be reconverted into
private aircraft during that period.
ARTICLE 4. The terms of the first section, Chapter II, and of the
second section, Chapters I and III, of the Hague Regulations of
October 18, 1907, concerning the laws and customs of war on land,
besides those expressly laid down in the following articles, will
apply, as far as possible, to aerial war.
580
AERIAL WARFARE.
581
ARTICLE 5. In accordance with the second and third Declarations
of The Hague of July 29, 1899, the discharge from aircraft' of pro-
jectiles, the sole object of which is the diffusion of asphyxiating or
deleterious gases, or of bullets which expand or flatten easily in the
human body, is forbidden.
ARTICLE 6. The bombardment by aircraft of towns, villages, habi-
tations or buildings which are not defended is forbidden.
The rules established by the Hague Convention of October 18,
1907, relative to sieges and bombardments by land or naval forces,
are applicable to aerial war.
ARTICLE 7. Aircraft can only be considered suspected of espionage
if, acting clandestinely or under false pretences and thus dissimu-
lating their operations, they obtain, or seek to obtain, information,
above the territory or territorial waters of a belligerent, or above
territory occupied by his troops, or, in the open sea, above one of
his squadrons or ships of war, and, generally, in the zone of his
operations, with the intention of communicating it to the hostile
party.
It is consequently a principle that soldiers, not in disguise, em-
ployed on scouting duty in aircraft, and individuals dispatched in
aircraft to carry dispatches and in general to maintain communica-
tion between the various parts of an army or of a territory, are not
considered spies.
ARTICLE 8. The public aircraft of a belligerent State, though not
appertaining to the military service, are liable to seizure and con-
fiscation
ARTICLE 9. The private aircraft of the enemy may be seized by a
belligerent above his own or the enemy's territory or 'territorial
waters, and above the open sea, but they must be restored at the
peace without indemnity. Any merchandise, even belonging to the
enemy, found on board such aircraft, is not seizable.
The foregoing dispositions do not modify the right of confisca-
tion which a belligerent possesses in virtue of the rules relating to
blockade and contraband of war, and generally, in the case of private
enemy aircraft performing hostile acts or being employed in a mil-
itary task.
ARTICLE 10. The validity or nullity of the acquisition of neutral
nationality by enemy aircraft is, in accordance with the dispositions
of Chapter V of the Declaration of London of February 26, 1909,
dependent on the moment at which the transfer has been effected
and the conditions on which it has been carried out.
ARTICLE 11. The fact whether an air-ship or aeroplane is enemy
or neutral is shown by the distinctive sign of its nationality, which
it has the right to carry.
582
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ARTICLE 12. When private enemy aircraft or public non-military
enemy aircraft are seized by a belligerent, the captain and crew,
whether subjects of the enemy State or of a neutral State, are not
made prisoners of war, but must be left at liberty under the con-
ditions provided for in Chapter III of the Hague Convention of
October 18, 1907, relative to certain restrictions upon the exercise
of the right of capture in maritime war.
ARTICLE 13. The destruction of private enemy aircraft or of public
enemy aircraft is only permissible under the exceptional circum-
stances of the aircraft's acting as, in fact, military aircraft, or re-
sisting the legitimate exercise of the right of capture; and the de-
struction cannot be carried out until after a special summons has
been made.
ARTICLE 14. Belligerents possess the right to capture enemy air-
craft, private or public, descending on their territory whether by
accident or forced descent.
ARTICLE 15. The private aircraft of a belligerent which happened
to be within the enemy's territory at the outbreak of hostilities, and
aircraft which quitted their last port of departure before the com-
mencement of hostilities and arrived within hostile territory with-
out knowing of the existence of hostilities, can only be seized under
the conditions named in Article 9 if no "days of grace" have been
granted for their departure, or if, such“ days of grace” having been
granted, advantage has not been taken thereof. Days of grace
cannot be granted to private enemy aircraft the construction of
which shows that they are intended to be transformed into war
aircraft.
Private enemy aircraft which quitted their last port of departure
before the commencement of hostilities and are encountered, in space,
ignorant of the existence of hostilities, may be seized like all other
private enemy aircraft.
Public non-military aircraft may receive the benefit of the “ days
of grace" in the same circumstances as private aircraft.
ARTICLE 16. Aircraft charged with scientific or philanthropic mis-
sions are exempt from seizure, under the conditions named in Chap-
ters I and II of the Hague Convention of October 18, 1907, relative
to certain restrictions on the exercise of the right of capture in mari-
time war.
ARTICLE 17. As regards the treatment of sick and wounded, the
provisions of the Hague Convention of October 18, 1907, for adapta-
tion of the principles of the Geneva Convention to maritime war,
are applicable also to aerial war, so far as possible.
The wounded and sick soldiers of a belligerent deposited by air-
craft upon a neutral State's territory with the consent of the local
authorities, must, in default of an arrangement to the contrary be-
AERIAL WARFARE.
583
tween the neutral and the belligerents, be guarded by the neutral
State so as to prevent their taking part again in the operations of
the war. The expenses of maintaining them in hospital and of in-
terning them will be borne by the State to which the wounded and
sick belong
ARTICLE 18. An army which invades or occupies a hostile territory
may seize aircraft of enemy nationality, even if belonging to private
persons; but, in this latter case, the aircraft must be restored and in-
demnities for them regulated at the peace, in conformity with
Article 53 of the Hague Regulations of October 18, 1907, on the laws
and customs of war on land.
ARTICLE 19. The military aircraft of the belligerents which enter
neutral territory must not remain there more than twenty-four hours,
unless prevented by damages or the state of the atmosphere.
If aircraft of the two belligerent parties happen to be simulta-
neously at the same place in this territory, at least twenty-four hours
must be allowed to elapse between the departure of the aircraft of
the one belligerent and the aircraft of the other. The order of their
departure is determined by the order of their arrival, unless, in the
case of the aircraft arriving first, there is an admissible reason for
prolonging the stay.
Belligerent aircraft must not do anything within neutral territory
which might augment their military power, and their presence must
not in any way prejudice the interests of the neutral State; the only
acts which they may perform are those which humanity cannot for-
bid and which are indispensable for enabling them to reach the
nearest point in their own country or in a country allied to them
during the war.
The principles of the Hague Convention of October 18, 1907, re-
lating to neutral rights and duties in maritime war, are generally
applicable to aerial war.
ARTICLE 20. The aerial navigation of neutral countries is pro-
hibited in all parts of the atmosphere dominating the territory of
the belligerent States, as well as within a radius of 11,000 meters
from their frontier.
Except in the case of force majeure, aircraft disobeying this pro-
hibition will be confiscated if espionage is not proved against them.
ARTICLE 21. In case of a blockade with an effective area of more
than 11,000 meters, neutral aircraft may not approach any point in
this area, even if more than 11,000 meters from the enemy's frontier.
Neutral aircraft in a blockaded port may not leave it.
The rules formulated by the Declaration of London of February
26, 1909, as to blockade, are applicable in aerial as in maritime war.
ARTICLE 22. Articles constituting contraband of war may be con-
fiscated on board neutral aircraft as well as on board enemy aircraft.
584 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ARTICLE 23. As regards the determination of articles constituting
contraband of war and the conditions in which they may be seized,
the rules laid down in the Declaration of London. of February 26,
1909, Chapter II, shall be followed.
ARTICLE 24. Among the articles of "conditional contraband"
which may be declared confiscable if destined for the use of the
armed forces or of a Government department of the enemy, the follow-
ing may be classed, viz, aircraft, their distinctive component parts
and accessories, articles and materials of the special character of
aircraft stores.
ARTICLE 25. The Provisions of Chapter III of the Declaration of
London of February 26, 1909, relative to unneutral service at sea,
shall be applicable to neutral aircraft.
There is a presumption of unneutral service, justifying capture,
against neutral aircraft circulating above belligerent States.
ARTICLE 26. Neutral aircraft may be destroyed under the same con-
ditions as belligerent aircraft.
ARTICLE 27. Neutral aircraft descending in belligerent territory,
owing to accident or "forced descent," may be seized and confiscated
in the cases and subject to the conditions specified in the preceding
articles.
ARTICLE 28. The subjects of a neutral State shall be treated like
those of the belligerent States as regards aircraft belonging to them
in the territories of the belligerents.
ARTICLE 29. The adjudication of aerial prizes is subject to the same
rules as the adjudication of maritime prizes.
ARTICLE 30. If the seizure of an aircraft or its cargo has not been
upheld by the prize courts, or, if, without the matter being brought
before the courts, the seizure has not been maintained, the parties
interested have a claim to damages, unless there has been sufficient
justification for the seizure of aircraft and cargo.
In the case of destruction of an aircraft, unless the captor can
show that he acted in the circumstances referred to in Article 13,
he is bound to indemnify the persons interested, and it is not neces-
sary to inquire whether the seizure was valid or not.
Fauchilles Project, Institute, appendix, pp. 248–254.
ARTICLE 1. Captive aircraft having in general the nationality of
the sovereign, legitimate or actual, of the territory to which they are
attached are, in time of peace as well as in time of war, placed under
the laws and jurisdiction of that territory.
In exceptional cases where they have a different nationality, they
should be subject to the following rules:
1. On land, private aircraft are governed by the laws and juris-
diction of the country below them, except for acts constituting mere
AERIAL WARFARE.
585
infractions of discipline or professional duty of the aeronaut; public
aircraft are, on the contrary, subject to the authority of the govern-
ment to which they belong, unless their commander has delivered the
delinquents to the local authorities or asked their intervention, or
the affair touches the security or well-being of the territorial State.
2. The acts performed in the car of a captive aircraft above the
open sea or territorial waters of a State fall within the jurisdiction
of the courts and laws of the country of the aircraft or of that of
the vessel to which it is attached according as the aircraft is public
or private, without regard to the public or private character of the
vessel.
ARTICLE 2. In time of peace, captive aircraft that are not national
military aircraft cạnnot without authorization in writing from the
military authority be installed within 10,000 meters of fortified works.
No captive aircraft, private or public, can be located within 10,000
meters of the fortified works of neighbouring States without per-
mission in writing from those States.
In time of war, captive aircraft of neutrals cannot be located on
their own territory within 10,000 meters of the frontier of the bel-
ligerent States. But the captivé aircraft of the belligerents have the
right to operate over their territory up to the very boundary of the
neutral States. Belligerent captive aircraft cannot be installed on or
even pass over the territory of a neutral country.
ARTICLE 3. Captive aircraft that get loose shall be treated as free
aircraft.
ARTICLE 4. Unmanned free aircraft which, under the name of
sounding balloons, have an exclusively scientific purpose may in
time of war as well as in time of peace freely circulate in all parts
of the atmosphere.
These aircraft have, attached to their car, a plate giving their
name, their domicile and the name and address of their owner; they
bear on a certain place on their covering a flag of a particular shape
indicating their nationality.
Every State must see to it that its inhabitants respect the sounding
balloons that ground on its territory or are found at sea, and that
they answer the list of questions found in the car and send them
back promptly to the writer; customs formalities shall be simplified
as far as possible with regard to such aircraft.
It is desirable that the States form an international union whose
bureau, established at (Strassburg), shall be charged with
regulating the use and status of sounding balloons and with cen-
tralizing the information collected.
ARTICLE 5. Unmanned free aircraft of which one of the belligerents
makes use in time of war for the conduct of its operations may be
110678-19
-38
586
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
fired upon by the other in those parts of the atmosphere where acts
of hostility are authorized.
But if these aircraft escape the fire of the belligerent troops, neu-
tral States above which they pass have no right to touch them at
any height whatever.
In case aircraft of this kind fall upon the territory of a neutral
State or are found at sea by a subject of a neutral State, the author-
ities of that State should keep them until peace, together with the
dispatches and carrier pigeons found upon them.
Fauchilles' Project, Institute, appendix, pp. 254-256.
Code on aircraft in war proposed by Mr. von Bar.
ARTICLE 1. In general it is forbidden to make use of air-ships,
balloons or aeroplanes as means of destruction or of combat.
ARTICLE 2. Nevertheless (a) enemy military airships, balloons or
aeroplanes, if fired upon from the land or from shipboard, may de-
fend themselves;
(6) Combats in the air are permitted :
(1) If there is a naval engagement and the air-ships, balloons or
aeroplanes are not distant more than twenty kilometers from the
place of engagement;
(2) In the territorial waters of belligerents within a zone of
blockade:
(3) In the aerial space above the territory of the belligerents.
ARTICLD 3. It is forbidden to capture in the air enemy private
air-ships, etc., except when they voluntarily enter the aerial space
above the territory of the adversary or in a zone of blockade or in
case of contraband under Article 4.
ARTICLE 4. Likewise it is forbidden to seize and confiscate neutral
air-ships or their cargoes as contraband, except when they are bring-
ing aid directly to a blockaded coast or port or to the enemy army
or fleet in the theater of war.
ARTICLE 5. In the cases excepted by Articles 4 and 5 the rules for
maritime prizes shall be applied.
ARTICLE 6. It is forbidden enemy private air-ships to penetrate
into the aerial space of the adversary State.
ARTICLE 7. Belligerents may forbid neutral air-ships to enter the
aerial space above their territory.
ARTICLE 8. It is forbidden to fire upon neutral air-ships without
previous warning and to fire upon them if they happen to be forced
to land.
Institute, appendix, pp. 256, 257.
The coming of the “airship of war" will doubtless produce a fresh
set of questions relating to belligerent qualifications. It is practi-
cally impossible to foresee, at present, what rules will be found neces-
AERIAL WARFARE.
587
0
sary to regulate fighting in the new element. Most probably, mari-
time war law will be followed rather than terrestrial. Belligerent
status will depend rather on the commission of the fighting engine,
and its colours, than on the uniform, etc., of its crew. M. Paul
Fauchille, who has given a special study to the subject writes as
follows:
In order to establish the difference between public and private
aerostats, and between neutral and belligerent, it will be advisable
for the balloon to carry at a fixed spot in its envelope the national
colours, in the form of an “air standard,” the appearance of which
shall be different for each nation and which shall be recognisable
at a great distance and notified beforehand to the Powers.
Spaight, p. 72; Bonfils, § 1440.
The throwing of projectiles from balloons is forbidden by the fol-
lowing Declaration, made at the Hague Conference of 1899 for a
period of five years (Great Britain and the United States of Ameri-
ca being dissentients), and renewed in 1907 until "the close of the
Third Peace Conference”--the next Conference.
The Contracting Powers agree to prohibit for a period extending
to the close of the Third Peace Conference, the discharge of pro-
jectiles and explosives from balloons or by other new methods of a
similar nature.
This Declaration has been signed by the United States, Austria,
Great Britain, Norway and Switzerland; it has not been accepted by
Germany, Spain, France, Italy, Japan, Sweden. In this list I take
account only of the more important nations. It has not, therefore, a
universally binding force and cannot be said to be a "law of war,"
except as between the nations which have signed it. It was proposed
at the last Hague Conference that the shelling or dynamiting of
undefended towns or villages from air-ships or balloons should be
specially prohibited. It was considered, however, that this point
would be sufficiently covered by adding the words "by any means
whatever " to Article XXV.
Spaight, pp. 102, 103.
Bombardment from dirigible balloons will soon have to be
reckoned with, of course, and, no doubt, bombardment from aero-
planes too in the course of time, but so far as terrestrial war is con-
cerned the march of events may bring it about that “simple bom-
bardment” of inhabited cities will become an impossibility, simply
as a natural consequence of changed methods of defensive war. It
is sincerely to be hoped that it may be so.
Spaight, p. 166; Hall, p. 396.
588
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
in the matter of balloonists the Germans stretched the ap-
plication of the term [spy] beyond all reason and precedent. They
claimed the right to treat as spies all persons who tried to pass out
of Paris in 1870 in balloons. Those whom they captured were not
actually executed but were treated with great severity. “A. M.
Nobécourt had his balloon fired upon and when subsequently cap-
tured, he was condemned to death; the sentence was commuted to
fortress imprisonment at Glatz.” The Hague Règlement, repro-
ducing the decision arrived at at Brussels, has now declared ex-
pressly against the German view, though it has left open the ques-
tion of balloonists sent out to gain information. With the advent
of air-ships as engines of war, and future wars will probably see
aeroplanes largely used for reconnaissance purposes, the question
will in all probability arise again, with new complexities and dif-
ficulties, but at present one may leave it until air fighting becomes
an actuality.
Spaight, pp. 208, 209; Hall, p. 450.
The First Hague Peace Conference adopted likewise a Declaration,
signed on July 29, 1899, prohibiting for a term of five years the
launching of projectiles or explosives from balloons or other kinds
of aerial vessels. The Second Peace Conference, on October 18, 1907,
renewed this Declaration up to the close of the Third Peace Con-
ference, but out of twenty-seven States which signed the Declara-
tion only seven-namely, Great Britain, the United States of
America, China, Holland, Bolivia, Salvador, Haiti (Nicaragua ac-
ceded later)—ratified it, and Germany, France, Italy, Japan, Russia-
not to mention smaller Powers—did not even sign it. There is,
therefore, no doubt that the Third Peace Conference will not renew
the Declaration. Although it is very much to be regretted, the fact
must be taken into consideration that in future violence directed
from air-vessels will play a great part in war. For this reason, the
question as to the conditions under which such violence is admissible,
is of importance, but it is as yet impossible to give a satisfactory
The Institute of International Law, at its meeting at
Madrid in 1911, adopted the principle that aerial warfare must not
comprise greater danger to the person and the property of the peace-
ful population than land or sea warfare. However this may be,
there can be no doubt that the general principles laid down in the
Declaration of St. Petersburg of 1868, in the two Declarations,
adopted by the First Peace Conference, concerning expanding bullets
and projectiles diffusing asphyxiating or deleterious gases, in the
Hague rules concerning land warfare, and the like, must find appli-
cation as regards violence directed from air vessels.
Oppenheim, vol. 2, pp. 150, 151.
answer.
AERIAL WARFARE.
589
*
It is also forbidden, as between belligerents that are parties to the
Hague Declarations, * to discharge projectiles and explo-
sives from balloons, or by other new methods of a similar nature.
Cobbett, pt. II, p..98.
By the Hague Regulations, a belligerent is now forbidden to bom-
bard or attack, by any means whatsoever, undefended towns, villages,
habitations, or buildings; a prohibition which would appear to cover
the case of bombardment by projectiles from balloons, irrespective
of the Declaration previously mentioned.
Cobbett, pt. II, p. 99.
Early recognition of military value of balloons.
During the last quarter of the eighteenth century the military
value of balloons was recognized and various experiments were
made. Giroud de Vilette, about 1783, wrote that from the beginning
of his experiments he was convinced that the balloon would be an
economical and very useful instrument for observing the position,
maneuvers, march, and disposition of the enemy's forces, and for
signaling this information to his own troops.
A balloon was used for observation purposes at the battle of
Fleurus June 26, 1794. Balloons at the siege of Venice in 1849
were not found satisfactory for the discharge of projectiles. Bal-
loons were used to a considerable extent during the Franco-Prussian
War, and von Moltke had confidence in the military usefulness of
air craft.
The captive balloons used particularly for observation and signal-
ling purposes offers few problems as to its treatment in time of war,
because the identity of the party which it serves or may serve is or-
dinarily easily determined. Kites and other captive air craft are
subject to the same limitations.
Free balloons offer a greater number of problems because it is
frequently difficult to determine whether there is any element of
hostility in a balloon which may be passing over.
U. S. Naval War College Discussions, 1912, pp. 57, 58.
Military balloonists not spies.
During the Franco-Prussian War persons who had passed the
German frontier in balloons were imprisoned and severely treated,
and a threat was made that they would be regarded as spies. None
were, however, executed, and a few years later it came to be gen-
erally recognized that balloonists under such conditions were liable
to be made prisoners of war, but were not liable to more severe
treatment.
590
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Hague conventions. The Hague convention, with respect to the
Laws and Customs of War on Land of 1899, in article 29, relating to
spies, said:
An individual can only be considered a spy if, acting
clandestinely or on false pretences, he obtains or seeks to ob-
tain information in the zone of operations of a belligerent
with the intention of communicating it to the hostile party.
Thus soldiers not in disguise who have penetrated into the
zone of operations of a hostile army to obtain information
are not considered spies. Similarly the following are not con-
sidered spies: Soldiers or civilians carrying out their mission
openly charged with the delivery of dispatches destined either
for their own army or for that of the enemy. To this class
belong likewise individuals sent in balloons to deliver dis-
patches, and generally to maintain communication between
the various parts of an army or a territory.
This article was reaffirmed in the convention upon the same subject
at The Hague conference of 1907. A limited use of balloons is thus
permitted.
U. S. Naval War College Discussions, 1912, p. 58.
.
Hague Convention rules.
The discharge of projectiles from balloons was prohibited for a
term of five years from 1899 by a declaration agreed upon at the
First Hague Peace Conference. The prohibition was extended to
analogous methods of discharge. When this convention came up
for renewal at the Second Hague Conference in 1907 it was found
that the development of the service of aerial navigation had made
such progress since 1899 that States which approved the declaration
of 1899 were not prepared to renew their adherence. Certain States,
however, favored it, and the declaration was again submitted for
approval, though only about one-half the States represented at the
conference signed at the time.
A restriction on the use of balloons for bombardment of open
places was, however, introduced in the Laws and Customs of War
on Land. Article 25. of this convention of 1899 provided :
The attack or bombardment of towns, villages, habitations,
or buildings which are not defended is forbidden.
Article 25 of the same convention of 1907 provided :
The attack or bombardment by any means whatever of
towns, villages, habitations, or buildings which are not de-
fended is forbidden.
The introduction of the clause by any means whatever is signifi-
cant, but it must be observed that the prohibition extends only to
places that are undefended and does not apply to fortified or de-
AERIAL WARFARE.
591
fended positions. Accordingly, so far as the conventional laws of
war are concerned, there is no prohibition of the use of balloons or
other air craft for purposes of observation, scouting, and the like
at any point, though doubtless neutrals have the right to regulate
the use of the air space above their territories, and to exclude air
craft which would use that air space for hostile purposes. There
is no conventional prohibition of the use of air craft for the bom-
bardment or attack upon fortified or defended places. The proposi-
tion of Lord Reay, of the British delegation to the Second Hague
Conference in 1907 to the effect that the prohibition of aerial war-
fare and the restriction of warfare to land and sea would be a step
in the direction of limitation of armaments did not meet with en-
thusiastic response.
U. S. Naval War College Discussions, pp. 58, 59.
Changed conditions since 1907. .
The discussion at The Hague conference in 1907 and elsewhere at
about the same time showed that on the part of many states the
willingness to put restrictions on the use of air craft in time of war
was due to the belief that they could not be effectively controlled.
Since 1907 the progress in methods of aerial navigation has been so
great that the conditions are now entirely changed. Air craft
ascend to heights that were thought impossible, make flights against
contrary winds, cross channels and seas, and go over mountains with
such ease as to disturb well matured war plans, are launched from
and light upon decks of war ships, and in fact have become an
agency which must be seriously considered in time of war.
The opposition to the use of air craft which was common before
1907 often had as its basis the contention that the use of such means
in war would be at too great a risk to those who were not directly
concerned in the war. It was maintained that the noncombatant
population and property would be unduly endangered by the dis-
charge of projectiles from balloons. The dirigibility of air craft
recently constructed has removed many of these objections.
In case of a battle on the high sea between two fleets many of
the objections to the use of air craft for the discharge of projectiles
and explosives would not hold to the same degree as in land warfare.
The amount of goods which may be carried in an air craft at
present is not large, but the risk to the belligerent is not always de-
termined by volume. The character of the goods may be the essen-
tial point. Information may easily be carried which may determine
the issue of a campaign.
While there has developed a considerable opposition to the exer-
cise by air craft of ordinary war rights of attack and defense by
V
592
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
means of projectiles it has been generally recognized that the bellig-
ersnt must be able to use such force as he possesses against air craft
which serve as scouts or may otherwise afford information to the
enemy which may be of vastly greater importance to the enemy than
any amount of material goods. The nationality of such air craft
may be of importance for the court, but for the commander of the
forces the main object is to prevent the furnishing of information
which may defeat or upset his plans.
U. S. Naval War College Discussions, 1912, pp. 59, 60.
Position of France, 1907.
M. Renault, of the French delegation to the Second Hague Con-
ference, speaking of the discharge of projectiles from balloons or
other air craft, said:
Peu importe la mode d'envoi des projectiles. Il est licite
d'essayer de détruire un arsenal, ou une caserne, que le pro-
jectile employé dans ce but provienne d'un canon or d'un
ballon; il est illicite d'essayer de dé truire un hôpital par un
procédé comme par l'autre. C'est là l'idée essentielle à la-
quelle nous estimons que l'on doit s'arrêter. Le problème de
la navigation aérienne fait de tels progrès qu'il est impossible
de prévoir ce que l'avenir nous réserve à ce sujet. On ne peut
donc légiférer en connaissance de cause. On ne peut s'inter-
dire d'avance la faculté de profiter de nouvelles découvertes
qui ne toucheraient en rien au caractère plus ou moins humani-
taire de la guerre, et qui permettraient à un belligérant d'ex-
ercer une action efficace contre son adversaire tout en respec-
tant les prescriptions du Règlement de La Haye. (Deuxième
Conférence Internationale de la Paix, Tome III, p. 152.)
The rapid development of aerial navigation has shown the wisdom
of M. Renault's position in 1907. The increasing range of flight of
air craft that are under control of the navigators has changed the
problem of aerial warfare. Aerial corps in some form are now
common adjuncts of military forces. The predictions of a few years
ago in regard to the use of the air by man are in many respects more
than realized. How far the use of air craft in war may be restricted
by conventional agreement remains undetermined. Precedent seems
to show that states are inclined to use against their enemies such
force and such agencies as are under their effective control so long
as these are not from their nature repugnant to the sense of
humanity. Attempts were made to prohibit the use of torpedoes,
submarine boats, and in earlier days firearms. In the actual effect
of a projectile there may be little difference when it is fired from
a gun several miles distant so as to fall withir a certain area or
!
AERIAL WARFARL.
593
dropped from an air craft a few hundred feet above the area. In
firing upon air craft the motion of the target may be in any direc-
tion in space, while in a naval vessel the motion of the target is in
the main upon a plane.
These new conditions of possible warfare show that the rules for
warfare on land and on sea may not be adequate for the regulation
of conduct when the extended use of the air is involved in hostilities.
The changed attitude toward aerial warfare was shown in the differ-
ence in opinions of delegates to The Hague conference in 1899
and in 1907.
As Dr. Alex. Meyer, of Germany, says, in 1899 men were willing
to prohibit the discharge of projectiles from balloons for a limited
period, because it was felt that the lack of control of the balloon
made it a cause of unnecessary danger if its use should be unre-
stricted. With the development of means of control of balloons
and the advance in construction of dirigible air craft many of the
reasons for the restriction of their use in war have disappeared.
(Die Luftschiffahrt in kriegsrechtlicher Beleuchtung, p. 13.)
U. S. Naval War College Discussions, 1912, pp. 60–62.
Aerial navigation conferences.
The aeronautical congress held at Nancy from September 18 to 24,
in 1909, expressed the wish:
1. Que les États, renonçant aux mesures prohibitives,
s'entendent pour réglementer la circulation aérienne dans un
sens libéral protégeant leurs droits de défense par toutes les
vérifications utiles, en assurant l'observation de leurs lois
douanières pår des mesures approprées à la matière, comme il
a été fait pour les véhicules automobiles.
Le Congrès reconnait que la matriculation des aéronefs
serait la meilleure et peut-être la seule manière d'assurer l'effi-
cacité d'une réglementation libérale.
2. Qu'en vue d'éviter les accidents et collisions, la circulation
des navires aériens soit l'objet d'une réglementation interna-
tionale établie en s'inspirant, autant que possible, du régle-
ment international, depuis longtemps éprouvé, relatif aux
abordages en mer, et en tenant compte des règles déjà pra-
tiquées dans la navigation aérienne.
3. Que, en raison de l'importance des connaissances météoro-
lcgiques pour la navigation aérienne, la météorologie prenne
une place toujours plus considérable dans l'enseignement.
(Revue Juridique Internationale Aéerienne, 1ere Année, p. 33.)
U...S. Naval War College Discussions, 1912, p. 62.
594
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In considering the rules of international law in times of war it is
important to have clear ideas as to the aerial space that can legally
serve as the theater of war and the base of warlike operations. It
is admitted by all that the aerial space above the territory and terri-
torial waters of belligerents and also the aerial space above the
high seas will in the future be legally the proper space for belligerent
activities. A more difficult question arises with reference to the
aerial space above the territory and territorial waters of neutrals.
If the theory that the air is completely free be adopted, one would
necessarily be obliged to admit that the entire aerial space above
neutrals should also fall within the field of warlike operations. So,
too, if one adopted the view that the territorial State has only a
limited zone of protection above its territory, or even if the terri-
torial State had only a limited zone of sovereignty, the logical con-
clusion would be that all the upper strata of the air space above the
neutral's territory should be a legitimate field for the operations of
the belligerent powers. But, so far as I know, all the adherents of
the freedom-of-the-air position do not take this last logical step in
their argument. They admit that the aerial space above neutrais
should not serve as a space for the carrying on of hostilities by the
belligerents. This admission on the part of the adherents of the
freedom doctrine is a most important one; and, strictly speaking, I
can not see in principle why they should not also admit the same
considerations to apply, in times of peace as in times of war. But
this, of course, they do not admit. On the doctrine of the terri-
torial State's full right of sovereignty in the entire air space above
its territory and territorial waters it is quite clear that this entire
neutral air space could never serve as a space for actual hostilities
between belligerents. In my opinion this latter is the sound view.
But although hostilities can not actually be carried on in neutral
aerial space, a further question arises as to whether this neutral air
space should be in other ways open to the use of belligerents. An
examination of the present rules of maritime international law will
assist us to an answer. Our fundamental question will be whether
present rules of maritime international law should be adopted for
future aerial international law. Present maritime international law
lays down certain very important provisions favoring belligerents.
It is not considered a violation of neutrality if a belligerent sea war
vessel simply passes through the territorial waters of neutrals. So,
too, the entry into neutral ports is not viewed as a breach of neu-
trality in case the entry is made for the purpose of obtaining pro-
visions or of carrying out necessary repairs. Should these same prin-
ciples apply in aerial international law?
The fact that territorial waters are in a sense a part of the sea,
viewed as an international highway, lies perhaps at the basis of the
AERIAL WARFARE.
595
rule that belligerent war vessels should have the right of passage
through neutral territorial waters. Probably a distinction could be
drawn between neutral territorial waters and the neutral air space
above these territorial waters, for it would undoubtedly be easy for
an air vessel to pass through this narrow stretch of neutral aerial
space into the air space over the neutral territory itself. The coast:
line itself acts as a natural and impassable barrier to sea vessels,
while the invisible aerial frontier offers no such actual check. But
despite this difference as regards natural conditions belligerent air
vessels might well be permitted to pass through this narrow neutral
aerial zone just above the coastal waters themselves.
If you think for a moment of the aerial space above the neutral
territory itself, you will see that the rule to be applied here should
be very different. Probably future international law will com-
pletely prohibit any passage of belligerent air vessels through the
air space above the neutral territory itself. Certainly the same rea-
sons for the present rules that prohibit the passage of belligerent
troops across the territory itself should apply equally to the passage
of belligerent aerial craft through the air space above that territory.
Admitting, then, that belligerent aerial craft should probably, on
principle, be allowed passage through neutral air space above the
neutral territorial coastal belt of water, the further question arises
as to whether belligerent air vessels should be permitted actually to
enter neutral harbors for purposes of asylum. Should they be per-
mitted thus to enter for purposes of revictualling and for carrying
out necessary reparations? As the sea itself is a highway for all
nations, these privileges accorded to belligerent sea war vessels in
neutral ports certainly seem to be based upon sound sense. Although
one can conceive of various differences in detail as between the entry
of belligerent sea vessels and belligerent air vessels, nevertheless it
would seem just to accord the same privileges to the one class of ves
sels as to the other. Undoubtedly difficulties would arise in carrying
out this principle, and the matter will require the most serious atten-
tion of international lawyers. It will be necessary, for example,
definitely to determine how long the air vessel should remain in the
neutral port, and it will be necessary to insure the strict observance.
of impartiality on the part of the neutral State itself.
Hazeltine, The Law of the Air 1910, pp. 136-140, quoted in U. S. Naval
War College Discussions, 1912, pp. 62-64.
French proposals, 1910, Fauchille.
The French Government presented to this conference (upon Aerial
Navigation, 1910] a series of propositions as bases for discussion.
These prescribed the method of determining the nationality and
identity of the airship, for licensing aerial pilots, for general pro-
596
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
hibition of the carriage of arms, explosives, photographic and radio-
telegraphic apparatus; for general liability to local authorities; that
military and police airships could cross the frontier only after per-
mission, and that other public airships should be assimilated to pri-
vate airships, though no airship should enjoy exterritoriality. The
problems before this conference were not settled, and adjournment.
was taken to November, 1910, but at this time some powers were un-
willing to participate, and adjournment sine die took place.
The propositions which had been presented to the Institute of In-
ternational Law in April, 1910, were placed before this conference.
That of M. Fauchille said:
ART. 7. La circulation aérienne est libre. Néanmoins les
États sous-jacent gardent les droits nécessaires á leur conser-
vation, c'est-a-dire à leur propre sécurité et a celle des per-
sonnes et des biens de leurs habitants.
He also proposed in regard to airships that they be divided into
public and private, and that the public airships might be military
or civil. Each should have a nationality and identity, which should
be made known. Airships might be excluded from certain zones, as
from that of regious of fortifications, which regions should be made
known. Navigation of the air above unoccupied territory and above
the open sea was to be free. In international navigation dangerous
articles and prohibited goods were not to be carried on airships. Acts
on board the airship were to be within the furisdiction of the State
to which the airship belonged, while acts taking effect outside the air-
ship are under jurisdiction of the State within which the airship
may be when the act takes place. Public airships would, so far as pos-
sible, be exempt from local jurisdiction. (17 Revue Droit Interna-
tional Public, p. 163, Mars-Avril, 1910.)
M. von Bar also submitted a proposition to the institute which
came before the conference. He considered airships under jurisdic-
tion of their own State so long as they remained in the air, though
liable to the territorial law for any act that might take effect outside
the airship. When it is not clear whether the act is criminal or civil,
the law of the State of the airship prevails. The propositions of MM.
Fauchille and von Bar were in many other respects supplementary.
Both show how the agreement upon principles of aerial jurisdiction
is progressing
U. S. Naval War College Discussions, 1912, pp. 65, 66.
The First International Juridical Conference for the Regulation
of Aerial Navigation held at Verona, from May 31 to June 2, 1910,
adopted resolutions, looking to the approval of much of the work
of the Paris International Conference on Aerial Navigation. It
maintained that the method of establishing the nationality of air-
ships should be clearly defined, inclining to the position that the
AERIAL WARFARE.
597
nationality of the owner should determine the nationality of the air-
ship, that the airship would be liable for damage caused by landing,
and that landing places might be prescribed. The conference re-
garded the aerial space above the open sea and above unoccupied ter-
ritory as free; the atmosphere above the territory and the marginal
sea of a State as under the jurisdiction of the subjacent State.
Within the aerial domain of the State and subject to the necessary
police and like regulations the navigation of the air would be free.
The aircraft with its persons and goods, save for police and like
regulations, would be under jurisdiction of the State to which it
belongs. (17 Ibid., p. 410.)
Subcommittees of the Comité Juridique International de l'Avia-
tion in considering a “ Code de l'Air” arrived at different conclusions
in 1910. The French subcommittee agreed upon the following:
ARTICLE 1er. La circulation aérienne est libre. Néanmoins
les États conservent les droits nécessaires à leur defense, c'est-
à-dire à leur propre sécurité et à celle des personnes et des
biens de leurs habitants.
ART. 2. L'espace demeure absolument libre au-dessus de la
pleine mer et des territoires inhabités.
The German committee proposed two projects, 7 members ap-
proving the first and 14 approving the second.
PROJET No. 1. L'espace au-dessus de la haute mer et des ter-
ritoires n'appartenant à personne est libre. L'espace situé
audessus du territoire d'un Etat, y compris les mers cotiéres,
est à envisager comme une partie du territoire de cet État.
PROJET No. 2. L'espace au-dessus de la haute mer et des
territoires n'appartenant à personne est libre. L'espace situé
audessus du territoire d'un Etat (y compris les mers côtières)
est à envisager comme une partie du territoire de cet État.
Aucun État, cependant, ne doit, en temps de paix, interdire le
passage inoffensif aux aérostats etrangers. Les événements
qui se passent sur un aérostats étranger dans l'espace au-dessus,
du territoire d'un autre État et qui n'intéressent pas celui-ci
sont jugés d après de droit de l'État auquel l'aérostat ap-
partient. (Revue Juridique Internationale Aérienne 1ere
Année, pp. 75–76.)
The Comité Juridique International de l'Aviation at meetings in
April and May, 1910, considered the French and German proposi-
tions and agreed upon the following:
ARTICLE PREMIER. La circulation aérienne est libre. Les
États n'ont sur l'espace situé au-dessus de leur territoire, y
compris les mer côtières, que des droits necessaires pour
garantir la sécurité et l'exercice des droits privés. (Ibid.,
p. 144.)
598
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
If the dominion of the air is in the subjacent State, this rule would
establish a servitude in the air, as is the case in the general servitude
in marginal seas which allows innocent passage.
The secretary of the Verona congress in 1910, Prof. Arnaldo de
Valles, in an Article in the July-August number, 1910, of the Revue
Juridique Internationale de la Locomotion Aérienne, said:
1. La théorie de la domanialité publique de l'espace aérien
est la plus conforme au régime juridique et économique actuel,
soit dans le droit national, soit dans le droit international.
2. Cette théorie donne une raison scientifique au droit de
police l'État et à l'exclusion des aérostats militaires des autres
nations; conclusions auxquelles on arrive dans la théorie de
liberté soulement par vole empirique.
3. Une théorie de la domanialité de l'espace aérien ne re-
streint pas la vraie liberté qui consiste dans le droit de circu-
lation. (Ibid., p. 208.)
U. S. Naval War College Discussions, 1912, pp. 66-68.
National regulations.
International aerial navigation has already become a subject of
domestic administrative regulation. The French minister of the
interior issued a circular to the local officials on March 12, 1909, pre-
scribing a method of action in case of landing of foreign balloons
within their respective territorial divisions:
12 MARS, 1909.
Monsieur le Préfet: La fréquence des atterissages de ballons
étrangers en France a amené le gouvernement à s'occuper de
cette question. Il a été reconnu que ces ballons étaient soumis
au payement des droits de douane et il a été décidé en consé-
quence qu'il y avait lieu en pareil cas, de prendre les mesures
suivantes : chaque fois qu'un ballon étranger descendra sur le
territoire francais, les maires, commissaires de police ou com-
missaries spéciaux devront vous en informer et prévenir sans
retard les agents du service des douanes, s'il en existe dans le
lieu d'atterrissage, ou, à leur défaut, les agents des contribu-
tions indirectes, afin d'assurer la perception des droits de
douane. Le ballon devra êtrà retenu jusqu'au payement des
droits. D'autre part, les aeronautes seront tenus de décliner
leur nom, prénoms, qualité et domicile. Si se sont des mili-
taires, ils devront indiquer le grade qu'ils occupent dans
l'armée ainsi que le corps ou les services auquel ils appartien-
nent. En outre, les maires et les commissaires de police dev-
ront s'assurer que l'ascension a été entreprise dans un but
purement scientifique et que les aéronautes ne sont livrés à
aucune investigation préjudiciable à la sécurité nationale.
AERIAL WARFARE.
599
Vous aurez soin de me transmettre ces renseignements par la
voie télégraphique en m'avisant de l'atterrisage du ballon. Je
vous prie de porter à la connaissance de MM. les sous-préfets,
maires et commissaires de police les présentes instructions dont
vous voudrez bien m'accuser réception.
Le Président du Conseil, ministre de l'intérieur.
G. CLEMENCEAU.
In 1909 also the opinion in Denmark seemed to be that a German
balloon had no right to establish in Denmark a station from which
to proceed to the North Pole, and it was maintained that a state had
the right to forbid airships access to any part of its territory if it
judged such access prejudicial to the national interests. (16 Revue
Droit International Public, p. 673, Sept.-Oct., 1909.)
There is also an undisputed legal right to regulate the movement
of persons approaching fortifications, whether they approach by
land, water, or air.
The use of the wireless telegraph has also been subject to national
and international regulation.
U. S. Naval War College Discussions, 1912, pp. 68–69.
Jurisdiction in subjacent State.
The Berlin agreement of 1903 and the Berlin convention of 1906
in regard to wireless telegraphy assume for the more important
States of the world that jurisdiction over the atmosphere resides in
the subjacent States.
The Hague conventions have prohibited by international agree-
ment the launching of projectiles from balloons, bombardment " by
any means whatever” of towns, villages, habitations, or buildings
which are not defended and unneutral use of the radio-telegraph.
A dispatch of December 20, 1910, announces that Italy proposes
that for time of war, by agreement by joint note, the powers of the
world prohibit all firing from and arming of aerial ships, limiting
their use to scouting and observation purposes only. This restriction
was not made in the Turko-Italian War of 1911–12.
It is evident from the regulations issued by State authority, from
decisions of courts, from codes, and expressions of State officials that
States assume that they have jurisdiction in the air space above their
territory.
The ideas in regard to the limits of aerial jurisdiction set forth by
those who are giving special attention to this subject are not, however,
in accord. It is natural that one group should maintain the ancient
doctrine that “the air is free.” Another group maintains that the
domain of the air is exclusively in the subjacent State. A third
group, between these, maintains that a certain zone of atmosphere
above a State is within its jurisdiction, and beyond this the air is
600
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
free. The height of this zone of jurisdiction is, however, a subject
of considerable difference of opinion.
The argument has been advanced that the aerial domain of a State
should be limited to a certain distance above its territory. It has
been stated that the altitude which an airship might attain can be
determined, but as the limits fixed in earlier estimates have been sur-
passed it seems unwise to attempt at present to establish such limits.
Some think the height of the zone can be determined in a manner
analogous to that of determining maritime jurisdiction. Some see
unsurmountable difficulties in the use of this analogy. Of those who
favor a zone theory some propose that the zone be determined by
the limit of vision; some that the limit of effective control by arms be
the determining factor; some that an arbitrary limit be agreed upon
by the States of the world; and others advance other propositions.
It is evident that the claim can not be well sustained that the
aerial dominion should be regarded as analagous to maritime, and
that what is allowed in the marginal sea be allowed in a marginal
zone of air, and what may be done on the high sea may be done
in the aerial space above this marginal zone. While in time of war a
battle between fleets upon the high sea might not endanger any
neutral, a contest between their aerial fleets in the high air might
result most disastrously to the subjacent neutral. In any case, while
the force of gravity remains and until further means for counteract-
ing its operation are devised a neutral State can not be expected to
submit to the risks of such use of the air. A warship upon the high
sea when disabled may sink to the bottom without peril to the nearest
neutral. From a battle in space above a neutral the descent of the
disabled airship, possibly with a load of explosives, would certainly
be with peril to the neutral. The perils to innocent neutrals be-
cause of war upon the high sea may be exceptional and almost neg-
ligible. The perils to innocent neutrals in case of war in the high 'air
above neutral territory would be certain and grave. Indeed, the
perils to those who, by the modern laws and customs of war are not
liable to undue risks even within enemy territory, would give good
ground for a question as to whether aerial battles above belligerent
territory even should not be restricted. If belligerents on the sea
may not fight so near the coast that their shot shall fall within
neutral jurisdiction, it would seem that battles in the air above neu-
tral jurisdiction would be similarly prohibited. This would apply
to the air above land and above the marginal sea, as projectiles or
disabled airships would, by the universal physical law, fall toward
the center of the earth when unrestrained. As, according to the law
of physics, the velocity would be accelerated in proportion to the dis-
tance from which a body falls, it would on a physical basis be no
less dangerous to allow a free zone at a considerable height than in
AERIAL WARFARE.
601
a lower altitude. While on the sea it might be generally maintained
that the greater the horizontal distance from the adjacent State the
less probability that the act would affect the adjacent State, it could
not be claimed that the greater the vertical distance from a sub-
jacent State the less probability that the act would affect the sub-
jacent State. This distinctly would not be true in case of anything
falling from an airship. Similarly, in observations of fortifications,
photography by telescopic lenses, etc., increase of altitude may
within limits give a greater range. Submarine mines for the defense
of a State may not be visible from the surface of the water but may
be seen from an airship.
It would seem that physical safety, military necessity, the enforce-
ment of police, revenue, and sanitary regulations justify the claim
that a State has jurisdiction in aerial space above its territory. This
position also seems to underlie established domestic law and regu-
lations, the decisions of national courts, the conclusions of interna-
tional conferences, and the provisions of international conventions.
It would seem wise, therefore, to start from the premises that air
above the high seas and territory that is res nullius is free, while
other air is within the jurisdiction of the subjacent State “and that
the exceptions to this rule are such only as by common usage and pub-
lic policy have been allowed, in order to preserve the peace and
harmony of nations and to regulate their intercourse in a manner
best suited to their dignity and rights," and for these exceptions to
the exclusive right of aerial jurisdiction of the subjacent State, in-
ternational conferences should by agreement immediately provide.
U. S. Naval War College Discussions, 1912, pp. 69–72.
1
Opinion of Fauchille.
Quel peut etre le théâtre de la guerre aérienne? La guerre, si
elle doit nuire aux belligérants, ne peut porter atteinte aux intérets
des neutres. L'application de cette idée conduit à la règle suivante;
les États belligérants ont le droit, en quelque partie que ce soit de l'at-
mosphère, de se livrer à des actes d'hostilité au-dessus de leur territoire
continental et au-dessus de la pleine mer ou de la mer que longe leurs
côtes, il leur est, au contraire, interdit d'accomplir des actes hostiles,
susceptibles d'entrainer la chute de projectiles et d'une manière gen-
erale de causer des dommages, au-dessus du territoire continental
des États neutres à quelque hauteur que ce soit, et à proximité des
côtes de ces États dans un rayon détermine par la force du canon de
leurs aéronefs.
Les aéronefs, militaires des belligérants, et aussi les aéronefs pub-
lics non militaires, ne peuvent, en temps de guerre comme en temps
de paix, circuler au-dessus des États neutres qu'avec l'autorisation de
ces États; quant aux aéronefs privés, ils n'ont besoin pour circuler
d'aucune autorisation. Mais il est défendu aux une et aux autres de sé
110678–1939
602
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
journer au-dessus des pays neutres dans un certain rayon pres des
frontières de l'État ennemi, car il ne faut pas qu'ils puissent, en se
tenant au-dessus de ces pays, faire des actes d'observation et d'ex-
ploration sur de territoire de l'adversarie. La circulation des aéronefs
en temps de guerre est, en tout cas, soumise aux mêmes restrictions que
pendant la paix; ils doivent notamment respecter les régiones inter-
dites, spécialement les ouvrages fortifiés, et s'abstenir de tous actes
dommageables au pays sous-jacent.
Bonfils, Droit International Public, Fauchille's 6e ed., quoted in U. S.
Naval War Collège Discussions, 1912, pp. 74, 75.
Opinions on use of aerial space.
But they (the belligerents) clearly do not have the right of using
the aerial space surrounding the territory of neutral States (includ-
ing marginal waters) for military purposes.
Hershey, American Journal of International Law, vol. 6, p. 386. quoted
in U'. S. Naval War College Discussions, 1912, p. 75.
Modern law of nations allows acts of war to take place only within
the territory of the belligerents or on the high seas. If air forces
are allowed to engage in future wars, they too, will have to observe
this principle. They will be limited to the air domain of the belliger-
ents and to the free parts of the air space.
The great importance of the aforesaid rule lies in its complement,
which forbids acts of hostility within neutral territory. Hence the
air space of neutral States will be closed to hostilities.
So
passage above the neutral land can not be allowed any more
than it is permitted on the soil.
Air Sovereignty-Lycklama á Nijhoit, pp. 65, 67, quoted in U. S. Naval
War College Discussions, 1912, p. 75.
In accordance with my conception of the legal nature of the air
space over the different parts of the earth's surface, the belligerents
can only use the air space over their own territory and over their
coast.waters, in addition to the air space over the open sea,
and over
territory without sovereignty, and can not, on the other hand, use the
air space over the territory and the coast waters of neutral States.
The air space over the territory and coast waters of neutral States
is, in accordance with my conception, by its legal nature, to be con-
sidered as neutral territory in every respect. Therefore not only
actions which are against the interests of neutral States are pro-
hibited, as, for instance, a battle, but in general all actions not con-
sistent with neutrality.
This author holds that the entrance of belligerent men-of-war into
neutral waters is not consistent with the neutral character of the
territory, and should be prohibited, except in certain special cases,
for instance, to transports carrying wounded, therefore
AERIAL WARFARE.
603
In the war law of the air this basic principle must be
asserted, and, therefore, during a war military airships of the
belligerents, on account of the warlike nature of the act, must
be prohibited both from passing through neutral air space,
and also, in general, from landing in any neutral territory.
Alex. Mayer, Die Luftschiffahrt in Kriegsrechtlicher Beleuchtung, pp.
18, 20, 24, quoted in U. S. Naval War College Discussions, pp. 75, 76.
$
Application of principles to blockade.
Whether the doctrine of freedom of the air for all navigators or
the doctrine of exclusive jurisdiction in the subjacent State prevail,
the question of the right of an air craft to enter a blockaded port
would be an important one. Must a naval blockading force also
maintain an aerial fleet in order that the blockade be binding under
the principle that a blockade “to be binding must be effective; that
is to say, maintained by a force sufficient really to prevent access to
the coast of the enemy," as provided in the Declaration of Paris in
1856? The United States has interpreted this clause to mean that
“ an effective blockade is a blockade so effective as to make it danger-
ous in fact for vessels to attempt to enter the blockaded port; it
follows that the question of effectiveness is not controlled by the
number of the blockading force.” (The Olinde Rodrigues, 174 U. S.
Sup. Ct. Repts. (1899), p. 510.)
Apparently if a blockade of a place is maintained by seagoing
vessels only, it will not be dangerous for air craft to pass the line or
to enter overland by making a comparatively short detour. The
actual cutting off of communication with a place by means of a mari-
time blockade is increasingly difficult, if not impossible. As the
ent rules in regard to blockade are such as have developed for the
maintenance of blockade by sea, it is not reasonable to expect that
these rules would in all cases apply to aerial navigation.
The service which air craft can at present render to a blockader
place would largely be that of a means of communication with the
outside world. Transportation of goods and persons would not com-
monly be by this method until aerial craft are further developed.
U. S. Naval War College Discussions, 1912, p. 77.
As the pres-
The aim of the blockade is to cut off communication with the block-
aded place. If one belligerent, as Lord Stowell says [The Atalanta,
6 C. Rob. 4401
prevails to interrupt that communication, any person stepping
in to lend himself to effect the same purpose (maintain com-
munication) under the privilege of ostensible neutral character
does, in fact, place himself in the service of the enemy State,
and is justly to be considered in that character.
604
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
An aircraft that enters a port blockaded by water would in effect
lend itself to the maintenance of communication with the area out-
side and would practically be in the service of the enemy. Such acts
have in recent years been regarded as in the nature of unneutral
service.
U. S. Naval War College Discussions, 1912, p. 79.
4 1
Jurisdiction in air space.
This situation involves the consideration of a field of relations
which has not yet been completely defined. It is therefore necessary
to consider the broad question of aerial jurisdiction somewhat fully,
giving due weight to conditions some vhat analogous on land and sea.
The air is, however, neither land nor sea, and the attempt to extend
the laws of one or the other to the air would be as unfortunate in re-
sults as an attempt to extend the laws of the land to the sea. The
air is less stable and less adapted to appropriation than the sea, as
the sea is less adapted to appropriation than the land. There has
accordingly grown up an idea that land might be subject to owner-
ship in the strict sense, while the sea could not be owned, but might
be under the jurisdiction of a State. Rights in air space would like-
wise be matters which would involve the principles of jurisdic-
tion.
Private air craft can be more easily used for military purposes
than can private marine vessels. The transfer of air craft from neu-
tral to belligerent control is more easy and less possible to detect.
Unneutral service by aircraft would be difficult to prevent.
Undoubtedly the laws of war on land and on sea should be adapted
to the aerial space so far as possible, but as the laws for land do not
cover all possible contingencies which may arise at sea, so the laws
of land and sea would not cover all contingencies that might arise
in connection with aerial space.
Referring to the marginal sea, Ortolan says:
L'état a sur cet espace non la propriété, mais un droit d'em-
pire; un pouvoir de législation, de surveillance et de juris-
diction, conformément aux règles de la jurisdiction interna-
tionale (Ortolan, Diplomatie de la mer, vol. 1, Liv. II, Ch.
VIII, p. 158.)
The tendency to confuse the idea of territory in the sense of land
with jurisdiction has been common. The feudal system bound the
State so closely with land that it was natural that land should for a
time receive main consideration. The conditions necessary for State
existence were gradually distinguished, and the attributes of the
State as a political entity were recognized. Among these attributes
one of the most important is the right to exercise jurisdiction.
AERIAL WARFARE.
605
As a legal concept, jurisdiction may be considered the right to
exercise State authority. Story says that it may be
laid down as a general proposition that all persons and prop-
erty within the territorial jurisdiction of a sovereign are
amenable to the jurisdiction of himself or his courts; and that
the exceptions to this rule are such only as by common usage
and public policy have been allowed, in order to preserve the
peace and harmony of nations, and to regulate their inter-
course in a manner best suited to their dignity and rights.
(Santissima Trinidad, 7 Wheat., 354.)
It is fully recognized that all land and the marginal sea, to a dis-
tance of a marine league at least, is subject to territorial jurisdiction,
and that the open sea is not within the jurisdiction of any State,
though vessels sailing upon such seas are within the jurisdiction of
the State whose flag they rightfully fly. As Story says, exceptions
to this rule of exclusive jurisdiction are such-
as by common usage and public policy have been allowed in
order to preserve the peace and harmony of nations and to
regulate their intercourse in a inanner best suited to their
dignity and rights.
The extreme theories of the freedom of the air would result in the
denial of rights which existing States already consider essential to
their existence as sovereign political entities.
The enlarged use of aerial space has necessarily given rise to new
problems. The range of possible attack in time of war is increased
if free use of the air is permitted. Scouting and similar measures
take on a more important character.
The superficial frontier of a State is more easily determined than
a frontier extending through aerial space.
U. S. Naval War College Discussions, 1912, pp. 79-81.
Belligerent air craft in neutral territory.
Situation II (a) gives rise to the question of the rights of air
craft of belligerents when in neutral territory.
Belligerent State X, brings a balloon to neutral State Z, and fills
it with gas preparatory to a flight with view to destroying a part
of the fleet of its enemy, State Y, by dropping explosives from
above.
If the balloon is permitted to take in the gas, will it be an act of
the nature which is permitted to vessels engaged in maritime war
when they are permitted to coal in neutral territory? The subject
of rights of coaling in neutral ports was given full consideration
in 1910, International Law Situations, Situation I, pages 9-44.
Previous to The Hague Convention respecting the Rights and Duties
606
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
or
of Neutral Powers in Maritime War, there was a growing tendency
to restrict the amount of coal that might be taken in a neutral port.
By article 19 of that convention, the neutral State was left the op-
tion of limiting the supply to an amount necessary to reach “the
nearest home port or some nearer named neutral destination
the neutral might permit the vessels “to take fuel necessary to fill
their bunkers." Those who maintain the doctrine of an unlimited
supply of fuel regard fuel simply as one form of supplies which
makes navigation possible. Those who would restrict the supply re-
gard fuel as more in the nature of war supplies. The drift of
opinion as shown by The Hague regulations is toward the allowing
of freedom in taking on fuel in a neutral port when not oftener than
once in three months.
Even with this extension of the right of coaling, the entrance of
a balloon into neutral territory may be in marked contrast to the
entrance of a vessel of war into a neutral port. One belligerent may
easily learn of the entrance of a vessel of his enemy to a neutral port.
The course which the vessel will follow on departure, the time of
sojourn, and other facts may be reasonably determined. A vessel
in a neutral port must ordinarily put to sea before reaching a home
or an enemy port. A belligerent would ordinarily, therefore, have
an opportunity to meet and to engage the vessel of his opponent in
an area where battle is lawful and without material risk to the
neutral.
It is possible, however, that the territory of States might be so
situated that a neutral State might be directly between the two bel-
ligerents; e. g., if war existed between Germany and Spain. In such
a case would the bringing of a war balloon to the French frontier
from Germany place France under any obligation to permit the
balloon to enter and take the necessary gas to make it navigable?
If German balloons were permitted to enter French territory, take
gas, and from points of advantage attack Spanish forces and terri-
tory, would such permission by France be analogous to the entrance
of German troops, or would it be the use of French territory as a
base? Whether or not the right of absolute sovereignty in the air
is in the subjacent State, certainly France would be under no obliga-
tion to receive a German war balloon into its territory when France
is neutral except on ground of humanity or vis major. France could
scarcely permit German war balloons to use French territory as a
point from which to attack Spain, and if German forces should
enter French territory internment would be the penalty.
If, however, a war balloon were brought into a French port on
board a German cruiser or other German public vessel, would it not
be entitled to the exemptions to which the boats, launches, etc., of
AERIAL WARFARE.
607
such vessels are entitled, and would it receive such treatment so long
as it is appurtenant to the vessel? Undoubtedly the vessel would be
allowed to take coal, oil, or other fuel for navigation; the launches
would have similar privileges. Would the taking of gas by an air
craft appurtenant to the public ship be analagous ?
When the air craft appertains to the land forces The Hague Con-
vention respecting the Rights and Duties of Neutral Powers and Per-
sons in Case of War on Land, 1907, would prevail. Article 2 pro-
vides that:
Belligerents are forbidden to move troops or convoys of
either munitions of war or supplies across the territory of a
neutral power.
Article 2 of the same convention provides for internment of troops
entering neutral territory.
When the air craft belongs to the naval forces and comes into port
under its own power, it may probably be allowed to take on supplies
analogous to the supply of fuel for war vessels without violation of
any neutral obligation. The taking of coal is often with a view to
bringing the war vessel within range of the enemy. The taking of
gas by a balloon might be for a similar purpose. The neutral has
full right to regulate the taking of coal, as has been shown in recent
wars. The neutral would have a similar right to regulate the sup-
ply of gas.
In the use of neutral land for balloons for land warfare the neu-
tral territory becomes practically .a base, and the neutral power is
in reality receiving the belligerent forces into its territory, which is,
according to the Convention respecting the Rights and Duties of
Neutral Powers and Persons in Case of War on Land, Article 2, pro-
hibited, unless internment follows.
An air craft of a belligerent that is brought, on board a war ves-
sel, into the territorial waters of a neutral may or may not be fitted
for use in war. If at the time it is not fitted for use and the neutral
State allows it to make the preparations necessary to adapt it for
war the State will doubtless be liable to the suspicion that its terri-
tory has been used as a base for warlike preparations.
Review of Situation II (a).-
In the situation, as stated the balloon is brought to neutral State Z
to be filled with gas with view to a flight in order to destroy a part
of the fleet of Y. This would seem to be an act in the nature of the
use of the territory of State Z as a base for warlike operations and
should be forbidden.
Solution (a).—The protest of belligerent State Y should be heeded
by neutral State Z.
U. S. Naval War College Discussions, 1912, pp. 85-88.
608
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Firing into neutral territory.
In Situation II (b), the question is raised as to what could be done
if the forces of one belligerent, State X, so maneuvers a balloon that
if shot at by the forces of the other belligerent, State Y, the shot
will fall in the jurisdiction of neutral State B.
Unquestionably Y has a right to fire at a war balloon of State X.
At the same time State B may demand that its jurisdiction be not
violated.
The Hague Convention respecting the Rights and duties of Neutral
Powers and Persons in Case of War on Land of 1907 provides, in
article 1, " The territory of neutral powers is inviolable.” The firing
of a shot which would land in neutral territory would be a violation
of neutrality and the neutral might, without offense, proceed against
the party committing such violation.
That the hostilities are in such neighborhood that the risk of firing
into a neutral State is present does not in any way excuse the bel-
ligerent from guarding against such action.
Solution (6).-Y may take any action which would not involve a
violation of neutral jurisdiction, as would be the case if the projectile
should fall in the territory of State B.
U. S. Naval War College Discussions, 1912, p. 88.
Jurisdiction over neutral air craft.
It is evident from Situation II (c) that there may be a risk to a
belligerent from the flight of a neutral air craft over belligerent terri-
tory. If the jurisdiction of the air space is not in the subjacent State,
the belligerent's right to control the use of the air space in the time
of war would be limited. It would seem that such a claim would lead
to many unfortunate complications. On the other hand, if the bel-
ligerent has jurisdiction over the air space above the territory, the
Government can prescribe regulations for its use. Whether the
theory that the air is free or the theory that the jurisdiction is in the
subjacent State prevails, the belligerent must have the right to regu-
late the use of the air space by neutrals in order that his operations
may not be thwarted intentionally or unintentionally by them.
As a general rule, a belligerent must have the right to exercise such
control of neutral air craft as may be necessary and possible.
In situation II (c) when a neutral air craft flies over the belligerent
State in such manner as to observe the disposition of its forces and in
such direction as to make it possible that it may disclose this disposi-
tion to the enemy, it would be competent for the belligerent State to
take such action as it was able in order to prevent the disclosure.
Solution (c).-When the neutral air craft lands within belligerent
territory it may be detained or other measures may be taken to pre-
vent the disclosure of military movenients.
AERIAL WARFARE.
609
While the neutral air craft is still in the air, the belligerent may
take such measures as possible to prevent disclosure of his military
movements.
U. S. Naval War College Discussions, 1912, pp. 88–90.
[See “The Laws of Land Warfare," United States Government
Printing Office, 1919, citations under Article 23 (e) and Article 25
for some further discussion of the question of the use of aircraft in
bombardment.
INVIOLABILITY OF A PUBLIC MINISTER IN TIME OF WAR.
Legal immunity.
ARTICLE 5. It [the privilege of inviolability) shall continue to be
effective as long as the minister or diplomatic official remains, in his
official capacity, in the country to which he has been sent.
It shall hold good, even in time of war between the two Powers,
for as long a time as is necessary for the minister to leave the country
with his staff and his effects.
Institute, 1895, p. 120.
Legal immunity [of a public minister] remains effective even in
case of offenses endangering public order or safety or of a crime
attacking the safety of the State, without prejudice to the right of
the territorial government to take such conservatory measures as shall
be deemed advisable (Article 6, Section 3).
Institute (1895), p. 123.
Not subject to reprisals.
Ambassadors of course are excepted, with their property, [from
Reprisals], whatever country and to whatever country they be sent,
for the limitation of Grotius to those non ad hostes nostros missi ”
is, pace tanti viri, wholly inadmissible.
Phillimore, vol. III, p. 32.
Necessity of safe conduct or passport.
In passing through the country to which he is sent, in order to
reach his destined post, he [a public minister] only requires, in time
of peace, a passport from his own government, certifying to his
official character. But in time of war, he must be provided with a
safe conduct, or passport, from the government of the state with
which his own country is in hostility, to enable him to travel securely
through its territories. A refusal to give such safe conduct is a
virtual refusal to receive or admit such ministers. “If they un-
dertake,” says Vattel, “ to pass privately, and without permission,
into places belonging to their master's enemy, they are liable to be
arrested; and of this, the last war furnished a signal instance.
An ambassador of France, going to Berlin, by the imprudence of
his guides, took his way through a village within the electorate
of Hanover, of which the sovereign, the king of England, was at
war with France. He was arrested, and afterward sent over to
610
INVIOLABILITY OF PUBLIC MINISTER.
611
England. As his Britannic Majesty had herein only made use
of the rights of war, neither the court of France nor that of Prus-
sia, complained of it.” (Vattel, Droit des Gens, liv. 4, ch. 7, § 85;
Wheaton, Elem. Int. Law, pt. 3, ch. 1, § 10; Martens, Guide
Diplomatique, § 22; Flassan, Hist. Dip. Fran., tome 5, p. 246;
Horne, On Diplomacy, sec. 2, § 19; Wildman, Int. Law, vol. 1, p. 119;
Bynkershoek, Foro Legatarum, cap. 9; Merlin, Repertoire, verb.
Ministre Public, sec. 5; Riquelme, Derecho Pub. Int., lib. 2, tit 2, cap.
Ad., 2; Real, Science du Gouvernement, tome 2, p. 297.)
Halleck, p. 232.
Refusal of passage.
In passing through the territory of a friendly state, other than
that of the government to which he is accredited, a public minister,
or other diplomatic agent, is entitled to the respect and protection
due to his official character, though not invested with all the privi-
leges and immunities which he enjoys in the country to whose gov-
ernment he is sent. He has a right of innocent passage through the
dominions of all states friendly to his own country, and to the honors
and protection which nations reciprocally owe to each other's diplo-
matic agents, according to the dignity of their rank and official
character. If the state through which he purposes to pass has just
reason to suspect his object to be unfriendly, or to apprehend that he
will abuse his right by inciting its people to insurrection, furnishing
intelligence to its enemies, or plotting against the safety of the gov-
ernment, it may very properly, and without just offense, refuse such
innocent passage.
Halleck, p. 233.
Restrictions upon passage.
In time of general war, or public danger, and when peculiar cau-
tion is necessary to be observed in the admission of strangers within
a country, although an innocent passage is not often refused to a
foreign minister, or other diplomatic agent, yet it is not unusual
or improper, in such cases, to restrict it within very narrow limits,
by prescribing the particular route he must travel. Thus, at the
famous congress of Westphalia, whilst peace was negotiating amidst
the dangers of war, and the noise of arms, the routes of the several
couriers sent or received by the plenipotentiaries were marked, and
out of such limits their passports were of no protection. The Span-
iards found similar maxims to prevail even in Mexico and the neigh-
boring countries. The ambassadors were respected all along the
road, but if they went out of the highway, they were to forfeit their
rights. Such reservations are sometimes necessary to guard against
spies being sent into a country, under the guise of diplomatic agents.
612
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
(Vattel, Droit des Gens, liv. 4, ch. 7, §§ 84, 85; Wheaton, Elem. Int.
Law, pt. 3, ch. 1, $ 20; Martens, Causes Célèbres, tome 1, p. 310;
Bynkershoek, de Foro Legatorum, cap. 9; Phillimore, On Int. Law,
vol. 2, $$ 172–175; Martens, Guide Diplomatique, $ 23; Garden, De
Diplomatie, liv. 5, § 26; Heffter, Droit International, $$ 204, 212;
Bello, Derecho Internacional, pt. 3, cap. 1, § 3; Riquelme, Derecho
Pub. Int., lib. 2, cap. Ad., 2; Merlin, Repertoire, verb. Ministre
Public, sec. 5; Rayneval, Institutions, etc., Appen. No. 2; Wicquefort,
de l'Ambassadeur, liv. 1, $ 29; Grotius, de Jur. Bel. ac Pac., liv. 4,
cap. 18, § 5; Miruss, das Europ. Gesandschaftsrecht, § 365; Wild-
man, Int. Law, vol. 1, p. 119; Foelix, Droit Int. Privé., § 212.)
Halleck, p. 234.
Necessity for safe conduct.
In time of war, he [a public minister] must be provided with a
safe-conduct or passport, from the government of the State with
which his own country is in hostility, to enable him to travel securely
through its territories.
Wheaton, pp. 297, 298.
Right of passage.
He [Vattel] afterwards limits this right of passage to the ambas-
sadors of sovereigns with whom the State through which the attempt
to pass is, at the time, in the relations of peace and amity; and
adduces in support of this limitation of the right, the case of Marshal
Belle-Isle, French ambassador at the Prussian court, in 1744, (France
and Great Britain being then at war,) who, in attempting to pass
through Hanover, was arrested and carried off a prisoner to England.
Wheaton, p. 322.
in whatever manner his mission is terminated, he [a
public minister] still remains entitled to all of the privileges of his
public character until his return to his own country.
Wheaton, p. 326.
A diplomatic agent, traveling on his way to the country to which
he is accredited, through a third country, pursuing for this purpose a
natural and proper route, is entitled to the same privilege as when
traveling through the country to which he is accredited. It may
be that such country is in a state of war with the third power. This
does not destroy his right of transit; but if a convenient route is
pointed out to him which will not embarrass an occupying army, he
must take this route, and can not be permitted to insist on carving
out a route of his own.
Moore's Digest, vol. IV, pp. 556, 557.
INVIOLABILITY OF PUBLIC MINISTER.
613
The outbreak of war causes at once the rupture of diplomatic
intercourse between the belligerents, if such rupture has not already
taken place. The respective diplomatic envoys are recalled and ask
for their passports, or receive them without any previous request, but
they enjoy their privileges of inviolability and exterritoriality for
the period of time requisite for leaving the country. Consular ac-
tivity likewise comes to an end through the outbreak of war.
Oppenheim, vol. 2, p. 129.
The fact that peace negotiations are going on directly between
belligerents does not create any non-hostile relations between them
apart from those negotiations themselves. Such negotiations can
take place by the exchange of letters between the belligerent Govern-
ments, or through special negotiators who may meet on neutral ter-
ritory or on the territory of one of the belligerents. In case they
meet on belligerent territory, the enemy negotiators are inviolable
and must be treated on the same footing as bearers of flags of truce,
if not as diplomatic envoys. For it can happen that a belligerent
receives an enemy diplomatic envoy for the purpose of peace ne-
gotiations.
Oppenheim, vol. 2, p. 328.
The position of an ambassador with respect to other powers.
Although the privileges of ambassy do not strictly avail as against
other Powers than that to which the Ambassador is accredited, yet, in
practice, it is usual in time of peace for third Powers, as a matter of
comity, to concede to an ambassador a right of innocent passagt.
But in time of war, if an ambassador accredited by one belligerent,
even to a neutral Power, is captured within the territory of the other
belligerent, then it would seem that he may be lawfully detained;
although it would not be lawful to capture him on a neutral vessel.
In such a case, however, at the request of the neutral, and in the
absence of grave reason to the contrary, a safe-conduct would prob-
ably be granted. In the case where a belligerent invader finds the
ambassador of a neutral State accredited to the other belligerent
within the territory of the latter, the privileges of the ambassador,
and his right to communicate with his own Government, ought to be
respected; subject only to such restrictions as may be dictated by
military necessity.
Cobbett, pt. I, p. 308.
Ambassadors and all other diplomatic agents of neutral powers, ac-
credited to the enemy, may receive safe-conducts through the terri-
tories occupied by the belligerents, unless there are military reasons
to the contrary, and unless they may reach the place of their destina-
614
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tion conveniently by another route. It implies no international
affront if the safe-conduct is declined. Such passes are usually
given by the supreme authority of the State, and not by subordinate
officers.
Lieber, art. 87.
* I received your letter of the 14th, suggesting the idea of asking
open letters from the French and British ministers addressed to the
commanders of their armed vessels, to insure to you an uninterrupted
passage, leaving me to determine on the propriety of asking. On
reflection, I am persuaded they can not be necessary, and I exceed-
ingly doubt the propriety of asking for them. The armed vessels of
neither nation would violate the rights of a public minister; and no
passport to him could afford security to the merchant vessel in which
he takes his passage. She must at all events be subjected to the usual
examinations. If a public minister going to his place of destination
must pass through the territories of the belligerent.powers, passports
for him though a neutral would be expedient; but the ocean being
the highway of all nations, it would seem to me to derogate from
our equal rights as a sovereign power, to seek protection there under
any passport but our own."
Moore's Digest, vol. IV, p. 559 ; Mr. Pickering, Sec. of State, to Mr.
King, min. to England, June 17, 1796, MS. Inst. U. States Ministers,
III, 178.
A belligerent has no right to stop the passage of a minister from
a neutral state to the other belligerent, unless the mission of such
minister be one hostile to the first belligerent.
Moore's Digest, vol. IV, p. 559; Mr. J. Q. Adams, Sec. of State, to Mr.
Brown, Dec. 23, 1823, MS. Inst. U. States Ministers, X. 140.
By a despatch of February 8, 1866, Mr. Charles A. Washburn,
minister resident of the United States to Paraguay, informed the
Department of State that he had been hindered and delayed in the
military lines of the allies who were then at war with Paraguay on
his return to Asuncion. On April 16, 1866, Mr. Seward wrote to Mr.
Washburn that the President considered this action to be “incon-
venient" and "not altogether courteous," although he desired "to
regard it as a not unfriendly proceeding.” Should the hindrance on
receipt of this instruction continue, Mr. Washburn was to address
himself to the commander of the allied forces and to the President
of the Argentine Republic, and, while informing them that he was
charged with no duties “inconsistent with the neutrality” which the
United States had maintained in the war, to ask them, in the name
of his Government, to give him, together with his family and domes-
tics, “safe conduct through their military lines.” Should the hin-
drance then not cease within a reasonable time, Mr. Washburn was to
INVIOLABILITY OF PUBLIC MINISTER.
615
apply to Admiral Godon, then in command of the United States
naval forces in that quarter, “ for passage on a ship of war with suffi-
cient naval escort to convey him to his destination."
By another despatch of April 27, 1866, written of course before
the foregoing instruction was received, Mr. Washburn stated that
the hindrance not only continued but was renewed at the time by
direct action of the President of the Argentine Republic and of the
commander of the allied fleet in the river Parana.
On receiving this despatch, Mr. Seward addressed identic instruc-
tions to Mr. Webb, American minister at Rio de Janeiro, and Mr.
Asboth, American minister at Buenos Ayres, June 27, 1866, in which
it was stated that the sovereignty and honor of the United States
would admit of no hesitation and delay in the matter, and that Mr.
Washburn was therefore directed to return at once to the United
States if the hindrance in question should not have ceased through
some proceeding of the governments concerned; and both ministers
were directed, unless they should have received satisfactory explana-
tions which they had previously been instructed to request, to demand
such explanations peremptorily, and if they should not be given
within six or eight days to ask for their passports and return to the
United States.
September 23, 1866, Mr. Seward acknowledged the receipt of a
“confidential” despatch from Mr. Webb, reporting the settlement of
the question of Mr. Washburn's detention. Mr. Seward stated, how-
ever, that he could not allow the despatch to maintain that character;
that he inferred that all obstructions had been removed, but that the
opposition to Mr. Washburn's passage was at length withdrawn
under protest; and that the United States could not consent to con-
sider the question of Mr. Washburn's right of passage to his destina-
tion debatable. Mr. Webb was instructed to inform the Brazilian
Government of this fact, as well as to say that the sensibilities of the
American people had been wounded by the transaction.
Noore's Digest, vol. IV, pp. 559, 560 ; Mr. Seward, Sec. of State, to Mr.
Washburn, min. to Paraguay, April 16, 1866, MS, Inst. Paraguay,
I. 79; Mr. Seward, Sec. of State, to Mr. Welles, Sec. of Navy, April
16, 1866, 72 MS. Dom. Let. 499; Mr. Seward, Sec. of State. to Mr.
Webb, No. 171, June 27, 1866, MS. Inst. Brazil, XVI. 144 ; Mr. Seward,
Sec. of State, to Mr. Asboth, No. 3, June 27. 1866, MS. Inst. Argentine
Republic, XV. 252; Mr. Seward. Sec. of State, to Mr. Washburn, No.
47, June 27, 1886, MS. Inst. Paraguay, 1.83; Mr. Seward, Sec. of
State, to Mr. Webb, No. 180, Sept. 23, 1866, MS. Inst. Brazil, XVI, 153.
After the objection of the allies to Mr. Washburn's passage was
removed, there was further delay in his proceeding to his post.
This delay was understood by the Department of State to be due to
questions of punctilio which were raised by Mr. Washburn, who also
made charges against Admiral Godon. October 23, 1866, Mr. Wash-
616
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
burn was instructed that the President expected him "to overlook
all points of ceremony and of past offense, real or imaginary, on the
part of the allied governments or any of them, and of past neglect,
real or imaginary, on the part of Admiral Godon, and adopt what-
ever course in your discretions may seem best to reach Asuncion.'
(MS. Inst. Paraguay, 1. 90.)
In a later instruction Mr. Seward said: “ The allies have at
length yielded to the final and more positive demand that you should
be allowed to pass; and you have thus safely arrived at Asuncion.
After this, it would be as inconvenient as it is unusual for the United
States to prefer any retrospective complaints against either Brazil,
the Argentine Republic, or that of Uruguay, more especially as with
each of those Governments we have friendly relations, and as each
of them, and especially Brazil, has made concessions to us in relin-
quishing objections both to the fact and the manner of your passing
their fleets and lines on the rivers Parana and Paraguay.” (Mr.
Seward, Sec. of State, to Mr. Washburn, No. 67, May 24, 1867, MS.
Inst. Paraguay, 1. 101.)
Moore's Digest, vol. IV, p. 561; see H. Ex. Doc. 79, 40 Cong. 3 sess. ;
H. Ex. Doc. 5, 41 Cong. 1 sess. ; H. Misc. Doc. 8, 41 Cong. 1 sess.;
H. Report 65, 41 Cong. 2 sess.
In the spring of 1868 Admiral Davis, who was then in command
of the South Atlantic squadron, sent the U. S. S. Wasp to the seat
of war in Paraguay for the purpose of taking Mr. Washburn out of
Paraguay, in compliance with Mr. Seward's request that he be re-
lieved from the embarrassing and probably dangerous situation in
which he then stood at Asuncion. The Wasp arrived at Curupaiti,
the headquarters of the allies, on the 25th of April, and remained
there until the 11th of June, when her commander returned to
Montevideo without accomplishing the object of his visit, in conse-
quence of the refusal of the Brazilian admiral, the Marquis of Caxias,
who commanded the allied fleet, to permit the vessel to pass up to
Asuncion. His refusal was based on "military reasons," and he
suggested other modes of exit for Mr. Washburn, which the latter
did not consider desirable or feasible. Admiral Davis laid the mat-
ter before Mr. Webb, the American minister at Rio de Janeiro, with
a suggestion that he procure an order from the Brazilian Govern-
ment to allow the Wasp to proceed up the Paraguay to a convenient
point of embarkation.
Mr. Webb, on July 1, 1868, accordingly addressed himself to Mr.
Silveira de Souza, Brazilian minister of foreign affairs; and as
the latter sustained the position of the Brazilian admiral, a discussion
ensued in which Mr. Webb quoted from his instructions of 1866, as
given above, and demanded that the Wasp be allowed to pass.
INVIOLABILITY OF 617
PU
UBLIC
MINISTER.
PUBLIC In advising the Department of State of his request to the Brazilian
Government for permission for the Wasp to pass, Mr. Webb, refer-
ring to the instructions of 1866, intimated that in the event of an
unfavorable reply he would ask for his passports and retire from
Brazil. In an instruction of August 17, 1868, Mr. Seward said that
he was not then authorized nor did he deem it necessary, with such
information as he possessed, to pronounce the sense of the Govern-
ment of the United States concerning Mr. Webb's contemplated close
of his mission; but that, with regard to the other matters, it was
not thought to be premature to say that the United States held that
it had a lawful right to send a ship of war up the Parana to Asuncion
for the purpose of receiving the American minister and his family
and conveying them from the scene of siege and war to neutral
territorial waters; that the refusal of the Brazilian admiral to permit
the Wasp to pass up to Asuncion " violates becoming comity on the
part of Brazil and the allies towards the United States, and is in
contravention of the law of nations;" and that the alternative modes
of exit suggested for Mr. Washburn were properly declined.
During the discussion at Rio de Janeiro, a change in the Brazilian
cabinet took place, and on August 5, 1868, the new minister of foreign
affairs, in a note to Mr. Webb, stated that, if the other modes of
relieving Mr. Washburn should be declined, the allies would agree
that a United States man-of-war should proceed to Asuncion,“ sub-
ject only to such trifling delay as may arise from the active execution
of any military operation which may transpire at the time; the
allies being well assured that the assertions of General Webb (which
they have never doubted) with regard to the observance of the duties
of a strict neutrality on the part of the vessel and of the representa-
tive of the Union shall most rigorously be carried out.”
September 15, 1868, Mr. Webb, who had accepted the foregoing
note as a settlement of the question, was instructed to express the
appreciation of the Government of the United States of “the just
and friendly manner in which the transaction has been brought to
a satisfactory end on the part of the Government of Brazil.”
Mr. Webb, min. to Brazil, to Mr. Seward, Sec. of State, No. 68, July 7, 1868,
Dip. Cor. 1868, II. 273; Mr. Webb to Mr. Silveira de Souza, min, of for. aff.,
July 1, 1868, id. 275; Mr. Silveira de Souza to Mr. Webb, July 9, 1868, id.
287; Mr. Webb to Mr. Silveira de Souza, July 13, 1868, id. 289–294, with extracts
Webb, Aug. 5, 1868, id. 295; Mr. Seward, Sec. of State, to Mr. Webb, No. 233,
Aug. 17, 1868, and No. 235, Sept. 15, 1868, id. 298, 299.
That safe conducts should be granted to neutral diplomatic representatives
through a blockading squadron, and that this privilege is secured by the law
of nations, see Mr. Fish, Sec. of State, to Mr. Kirk, min. to Argentine Republic,
June 17, 1869, MS. Inst. Argentine Republic, XV. 317.
In relation to the incident of the Wasp, see Davis's Life of Charles Henry
Davis, 321 et seq.
Moore's Digest, vol. IV, pp. 561, 563.
110678--19 40
POSTLIMINY.
Immoveable property.
Immoveable property, public or private, can, according to the
modern understanding of International Law, be acquired under a
sure title only in consequence of a Treaty of Peace or the entire sub-
jugation of the country of the original proprietor. Until one or
other of these events the jus postliminii remains.
The question whether, if the people shake off the subjugation, the
jus postliminiż would revive, is not without difficulty. Pando
visely distinguishes between two predicaments:
1st. If the subjugation presents the appearance of being a mere
temporary and involuntary submission to violence, the state of War
continues, and therefore the jus postliminiż continues.
2nd. If the dominion of the conquerors has been confirmed by the
consent, express or tacit, of the conquered—a consent which is pre-
eumed in law after the peaceable possession of some years—then War
has ceased, and the jus postliminii is forerer extinguished by Peace.
Phillimore, vol. III, pp. 785, 786; Pando, pp. 403, 404.
Postliminium on the return of peace.
Where the Treaty of Peace is silent, containing no express or im-
plied provision concerning rights or property which have undergone
a de facto change during the vicissitudes of War, some rules of justice
must be applied, when the war is over, to settle the condition of these
rights or this property, whether they appertain to a nation or an
individual subject.
These rules belong to the category of Postliminium, a name which
has, ever since its introduction into the Roinan Law, obtained uni-
versally in Public and International Jurisprudence.
It is true that, strictly speaking, the name itself appertains to a
state of War; but the principle, which the doctrine conveys, is ap-
plicable to the state of things now under our consideration. For the
doctrine of Postliminium applies to personal status, to property,
and to obligations, and says, in its general language, that these,
being de facto freed from the pressure of the enemy's force,
shall return to the channels in which they flowed before they were
by the pressure of that force diverted from them. The principle
upon which the doctrine rests is, that rights duly acquired cannot be
permanently taken away, either by the act of an individual or by
618
POSTLIMINY.
619
the act of an enemy State, without the consent of the State, to
which the original owner belongs.
It is true that the provisions in the Roman Law. upon this subject
are applied, almost exclusively, to the question of private rights;
but as has been often before observed in the course of this work, the
principles of natural justice embodied in the Roman Law are appli-
cable to States, as well as to individuals, in their intercourse with
each other.
Phillimore, vol. III, pp. 812, 813.
Having made these general observations as to the effect of the
doctrine of Postliminium upon the property of the State after the
conclusion of a War, and in the absence of any express stipulations
in the Treaty of Peace, it becomes necessary to examine the subject
a little further as to its practical application.
It is a subject which has undergone at different periods, both of
modern and ancient history, much discussion, and elicited a variety
of opinions. An examination of these opinions seems to demonstrate
that there has been too often a want of clearness and discrimination
upon two cardinal points.
1. As to the distinction which exists between the question con-
sidered as a matter of Public, and considered as a matter of Inter-
national Law, or, in other words, between the subjects and the gov-
ernment of the same State, and between the government of one
State and the subjects or the government of another State.
2. As to the distinction which exists between the effect of a simple
conquest or the acts of a conqueror; and the effect of an interregnum
or the acts of a de facto Sovereign.
It is necessary for the due unravelling of this question to keep
those distinctions continually in mind.
It has been already observed in an earlier part of this work, that
"Conquest, fortified by subsequent Treaty, gives a valid international
title to territory."
The distinction between the effect of the doctrine of Postliminium
upon moveable and immoveable property has been already the sub-
ject of remark; it is one indeed which has been pretty generally
observed by all writers upon the subject.
Phillimore, vol. III, pp. 813, 814.
Immoveable property.
It has been already seen that, in the case of immoveable property,
even actual possession by the conqueror does not confer a right of
alienation, which, after the conqueror has departed, will enure to
oust the original owner, unless such a result has formed part of the
620
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
stipulations of a Treaty or been ratified by some public act of the
State.
It is upon this principle that the Courts of the United States of
North America have determined that grants of territory made by
British governors after the Declaration of Independence by the
Americans are invalid.
In the case of a grant of land lying between the Mississippi and
the Chatahouchee rivers made after the Declaration by the British
Governor of Florida, the American Justice Johnson said,
“Two questions here occur: first, whether this separation had
taken effect by any valid act; and secondly, if it had, whether it made
any difference in the case upon international principles.
“On both these points we are of opinion that the law is against
the validity of this grant. It is true that the power of the Crown
was at that time admitted to be very absolute over the limits of the
royal provinces; but there is no reason to believe that it had ever
been exercised by any means less solemn and notorious than a pub-
lic proclamation. And although the instrument by which Georgia
claimed an extension of her limits to the northern boundary of that
territory was of no more authority or solemnity than that by which
it was supposed to have been taken from her, it was otherwise with
South Carolina. Her territory had been extended to that limit by a
solemn grant from the Crown, to the lords proprietors, from whom,
in fact, she had wrested it by a revolution, even before the rights of
the proprietors had been bought out by the Crown.
“But this is not the material fact in the case; it is this, that this
limit was claimed and asserted by both of those States in the Declara-
tion of Independence, and the right to it was established by the most
solemn of all International Acts, the Treaty of Peace. It has never
been admitted by the United States that they acquired anything by
way of cession from Great Britain by that Treaty. It has been
viewed only as a recognition of pre-existing rights, and on that prin-
ciple, the soil and sovereignty within their acknowledged limits were
as much theirs at the Declaration of Independence as at this hour.
By reference to the Treaty, it will be found that it amounts to a
simple recognition of the independence and the limits of the United
States, without any language purporting a cession or relinquishment
of right on the part of Great Britain. In the last article of the
Treaty of Ghent, will be found a provision respecting grants of land
made in the islands then in dispute between the two States, which
affords an illustration of this doctrine. By that article, a stipulation
is made in favour of grants before the War, but none for those which
were made during the War; and such is unquestionably the Law of
Nations. War is a suit prosecuted by the sword; and where the ques-
POSTLIMINY.
621
tion to be decided is one of original claim to territory, grants of soil
made flagrante bello by the party that fails, can only derive validity
from Treaty stipulations. It is not necessary here to consider the
rights of the conqueror in the case of actual conquest, since the views
previously presented put the acquisition of such rights out of this
case.??
Phillimore, vol. III, pp. 814–816; Harcourt v. Gaillard, 7 Curtis's
(Amer.) Rep. p. 332.
This doctrine therefore of the necessity of an actual possession,
as a foundation for the rights incident to an occupatio bellica, finds
its principal application with respect to (1) moveables, and to (2)
incorporeal things or rights. The former may be alienated by the
conqueror, who has actual possession of them, and are not subject, as
we have seen, to Postliminium. The latter raises a question as to
the power of the conqueror to alienate incorporeal things or rights,
which is one of no mean difficulty, and which, indeed, ranks among
the most remarkable and arduous subjects both of Public and of
International Jurisprudence.
Phillimore, vol. III, p. 816.
Compensation to individuals.
Where a Treaty has awarded compensation for confiscated prop-
erty, there have been various decisions in England upon cases alleged
to fall under this category: they have been principally decided by
the Privy Council, on appeal from Commissioners appointed to in-
quire into the claims. Among the principal cases the following relate
to Individuals. It has been decided by the Privy Council that a per-
son who possesses the characters both of a French subject under the
municipal Law of France, and of a British subject under the Statute
13 Geo. III. c. 26 (now repealed), as the grandson of a natural-born
British subject, although both he himself and his father were born
in a foreign country, is not entitled to claim compensation for a loss
he has sustained from a confiscation of his property by the French
Government under a Treaty between Great Britain and France, giv-
ing compensation for such a loss to British subjects. That an Eng-
lishman who has taken out letters of naturalisation in France is not
entitled to compensation as a British subject under such a Treaty.?
That the foreign wife of a British subject is not entitled to com-
pensation for the loss of her separate property, under a Treaty pro-
viding such a compensation for British subjects, unless she has her-
self acquired a domicile in Great Britain at the time of her loss.3
That a foreigner domiciled in Great Britain is, under such a Treaty,
entitled to claim compensation for his losses.
4
1 Drummond's Case, 2 Knapp's Privy Council Rep. p. 295.
2 Fanning's Case, ib. p. 301.
3 Countess de Conway's Case, 2 Knapp's Privy Council Rep. p. 364.
4 Ibid.
622
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The same judicial body has decided, with respect to Corporations,
that a corporation of British subjects in a foreign country, existing
for objects in opposition to British law, and under the control of a
foreign government, is not entitled to claim any compensation from
the government of the country in which they existed for the confisca-
tion of their property under a Treaty giving the right to British
subjects. It has been also decided that the individual members of
such a corporation are also equally incapacitated from making any
claim, as British subjects, from the loss of their income arising from
the funds of such a corporation. That a corporation of Irishmen,
existing in a foreign country, and under the control of a foreign gov-
ernment, must be considered as a foreign corporation, and is not
therefore entitled to claim compensation for the loss of its property,
under a Treaty giving the right of doing so to British subjects.3
That it makes no difference whether the purposes for which such a
corporation existed were or were not contrary to the law of Ireland.
And generally the English Privy Council has decided, that a
country re-conquered from an enemy reverts to the same state that
it was in before its conquest. The British inhabitants of a part of
the French dominions which was conquered by the Dutch, and after-
wards re-conquered by the French, ought therefore, the Privy
Council decided, to have had, after the re-conquest of that part, the
same protection that they were entitled to under a Treaty of Com-
merce of 1786; and this Tribunal awarded them compensation in
respect of losses after the re-conquest, incurred by sequestration of
their property in contravention of that Treaty by the French Gov-
ernment.5
Phillimore, vol. III., pp. 858, 859.
It [the right of postliminium] is a right recognized by the law of
nations, and contributes essentially to mitigate the calamities of war.
When, therefore, property taken by the enemy is either recaptured
or rescued from him, by the fellow-subjects or allies of the original
owner, it does not become the property of the recaptor or rescuer, as
if it had been a new prize, but it is restored to the original owner,
by right of postliminy, upon certain terms. Movables are not en-
titled, by the strict rules of the laws of nations, to the full benefit of
postliminy, unless re-taken from the enemy promptly after the cap-
ture, for then the original owner neither finds a difficulty in recogniz-
ing his effects, nor is presumed to have relinquished them. Real
1 Daniel v. Commissioners for Claims on France, 2 Knapp's Privy Council Rep. p. 23.
2 Ibid.
3 Long v. Commissioner's for Claims on France, 2 Knapp's Prity Council Rep. p. 51.
4 Ibid.
5 Gumbe's Case, 2 Knapp's Privy Council Rep. p. 369.
POSTLIMINY.
623
property is easily identified, and therefore more completely within
the right of postliminy; and the reason for a stricter limitation of it
in respect to personal property arises from its transitory nature, and
the difficulty of identifying it, and the consequent presumption that
the original owner had abandoned the hope of recovery. This right
does not take effect in neutral countries, because the neutral nation
is bound to consider the war on each side as equally just, so far as
relates to its effects, and to look upon every acquisition made by
either party as a lawful acquisition; with the exception of cases
where the capture itself is an infringement of the jurisdiction or
rights of the neutral power. If one party was allowed, in a neutral
territory, to enjoy the right of claiming goods taken by the other, it
would be a departure from the duty of neutrality. The right of
postliminy takes place, therefore, only within the territories of the
nation of the captors, or of its ally; and if a prize be brought into a
neutral port by the captors, it does not return to the former owner
by the law of postliminy, because neutrals are bound to take notice
of the military right which possession gives, and which is the only
evidence of right acquired by military force, as contradistinguished
from civil rights and titles. They are bound to take the fact for the
law. Strictly speaking, there is no such thing as a marine tort be.
tween belligerents. All captures are to be deemed lawful, and they
have never been held within the cognizance of the prize tribunals of
neutral nations. With respect to persons, the right of postliminy
takes place even in a neutral country; so that if a captor brings his
prisoners into a neutral port, he may, perhaps, confine them on board
his ship, as being, by fiction of law, part of the territory of his sover-
eign, but he has no control over them on shore.
Kent, vol. I, pp. 123, 124; M'Donough v. Dannery, 3 Dallas, 188, 198;
The Josefa Segunda, 5 Wheaton, 338, 358; La Amistad de Rues, 5
Wheaton, 3.90.
7
Real property.
In respect to real property, the acquisition by the conqueror is not
fully consummated until confirmed by the treaty of peace, or by the
entire submission or destruction of the state to which it belonged. If
it be recovered by the original sovereign, it returns to the former
proprietor, notwithstanding it may, in the mean time, have been
transferred by purchase. The purchaser is understood to have
taken the property at the hazard of a recovery or reconquest before
the end of the war. But if the real property, as a town or portion
of the territory, for instance, be ceded to the conqueror by the
treaty of peace, the right of postliminy is gone forever, and a
prerious alienation by the conqueror would be valid.
Kent, vol. I, p. 124.
624
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
1
Movable property.
In a land war, morable property, after it has been in complete
possession of the enemy for twenty-four hours (and which goes by
the name of booty and not prize), becomes absolutely his, without
any right of postliminy in favor of the original owner; and much
more ought this species of property to be protected from the opera-
tion of the rule of postliminy, when it has not only passed into the
complete possession of the enemy, but been bona fide transferred to
a neutral. By the ancient and strict doctrine of the law of nations,
captures at sea fell under the same rule as other movable property
taken on land; and goods so taken were not recoverable by the orig-
inal owner from the rescuer or retaker. But the municipal regula-
tions of most states have softened the rigor of the law of nations
on this point by an equitable extension of the right of postliminy,
as against a recaption by their own subjects. The ordinances of ser-
eral of the continental powers confined the right of restoration, on
recaption, to cases-where the property had not been in possession of
the enemy above twenty-four hours. This was the rule of the French
ordinance of 1681; but now the right is ererywhere understood to
continue until sentence of condemnation, and no longer.
Kent, vol. I, pp. 124, 125.
After conclusion of peace.
It is also a rule on this subject, that if a treaty of peace makes no
particular provisions relative to captured property, it remains in the
same condition in which the treaty finds it, and it is tacitly conceded
to the possessor. The right of postliminy no longer exists, after the
conclusion of the peace. It is a right which belongs exclusively to
a state of war, and therefore a transfer to a neutral, before the
peace, even without a judicial sentence of condemnation, is valid, if
there has been no recovery or recaption before the peace. The inter-
vention of peace cures all defects of title, and vests a lawful pos-
session in the neutral, equally as the title of the enemy captor him-
self is quieted by the intervention of peace. The title, in the hands of
such a neutral, could not be defeated in favor of the original owner,
eren by his subsequently becoming an enemy. It would only be
liable, with his other property, to be seized as prize of war.
Kent, vol. I, p. 125; Schooner Sophie, 6 C. Rob. 138; The Purissima
Conception, 6 C. Rob. 45.
Neutral and belligerent subjects.
Every power is obliged to conform to these rules of the law of
nations relative to postliminy, where the interests of neutrals are
concerned. But in cases arising between its own subjects, or between
POSTLIMINY.
625
them and those of her allies, the principle may undergò such modifi-
cations as policy dictates. Thus, by several English statutes, the
maritime rights of postliminy, as among English subjects, subsists to
the end of the war; and, therefore, ships or goods captured at sea
by an enemy, and retaken at any period during the war, and whether
before or after sentence of condemnation, are to be restored to the
original proprietor, on securing to the recaptors certain rates of
salvage, as a compensation or reward for the service they have per-
formed. The maritime law of England gives the benefit of this
liberal rule of restitution, with respect to the recaptured property of
her own subjects, to her allies, unless it appears that they act on a
less liberal principle, and then it treats them according to their own
measure of justice.
Great Britain seems to have no fixed rule as to the quantum of
salvage on a foreign vessel in cases of recapture, and the rate of
salvage in other nations of Europe is different, as allowed by dif-
ferent nations. The allotment of salvage on recapture or rescue is
a question not of municipal law merely, except as to the particular
rates of it. It is a question of the jus gentium, when the subjects
of allies or neutral states claim the benefit of the recapture. The
restitution is a matter not of strict right after the property has been
vested in the enemy, but one of favor and relaxation; and the bellig-
erent recaptor has a right to annex a reasonable condition to his
liberality.
Neutral property, retaken from the enemy, is usually restored,
without the payment of any salvage, unless, from the nature of the
case, or the usages of the enemy, there is a probability that the
property would have been condemned, if carried into the enemy's
ports, and in that case a reasonable salvage ought to be allowed, for
a benefit has been conferred.
Kent, vol. I, pp. 125, 126; The Santa Cruz, 1 C. Rob. 50; The Two
Friends, 1 C. Rob. 271; The War Onskun, 2 C. Rob. 299; The Car-
lotta, 5 C. Rob. 54.
Law of United States,
The United States, by the act of Congress of 3d March, 1800, di-
rected restoration of captured property, at sea, to the foreign and
friendly owner, on the payment of reasonable salvage; but the act
was not to apply when the property had been condemned as prize
by a competent court, before recapture; nor when the foreign gov-
ernment would not restore the goods or vessels of the citizens of the
United States, under the like circumstances. The statute continued
the jus postliminii, until the property was devested by a sentence
626
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of condemnation, and no longer; and this was the rule adopted in
the English courts, before the extension of the right of postliminy, hy
statutes, in the reigns of George II and George III.
Kent, vol. I, pp. 126, 127.
Roman law.
The jus postliminii was a fiction of the Roman law by which per-
sons, and, in some cases, things, taken by an enemy, were restored
to their original legal status immediately on coming under the power
of the nation to which they formerly belonged. Postliminium fingit
eum qui captus est, in civite semper fuisse. With respect to per-
sons, the right of postliminy had a double effect, passive and active.
Passive, inasmuch as the returned son fell again under the power of
his parent, and the returned slave under the power of his master;
and active, inasmuch as the returned person claimed to exercise his
original rights over other persons or things. To produce this passive
effect, the only requisite was the simple return of the individual;
but to produce the active effect, the individual must have returned
legally and for the purpose of regaining his rights. The jus post-
liminii was denied to those who illegally returned to their country
during an armistice, to deserters, to those who had surrendered in
had been the subject of a deditio, either during the war, or at the
2
time of making peace. With respect to things taken by the enemy,
the Roman law considered them as withdrawn from the category
of legal relations during the period of the enemy's possession of
them. If retaken by their former owner, they became his by the re-
capture; but, if retaken by the State, they were considered as booty,
or prize of war, the original right of property being extinguished by
the intervening hostile possession. But certain things were excepted
from this rule, as real property, horses, vessels used for purposes
of war, &c.; and to these the jus postliminii was accorded. This gen-
eral maxim of the Roman law, although not in all its details, is en-
grafted into modern international jurisprudence, and is fully recog-
nized as an incident to the state of war, and contributes essentially
to mitigate its calamities.
Halleck, pp. 865, 866.
What it covers.
The right of postliminy is founded upon the duty of every State
to protect the persons and property of its citizens against the opera-
tions of the enemy. When, therefore, a subject who has fallen into
the hands of the enemy is rescued by the State or its agents, he is re-
stored to his former rights and condition under his own State, for
POSTLIMINY.
627
his relations to his own country are not changed either by the cap-
ture or the rescue. So, of the property of a subject recaptured from
the enemy by the State or its agents; it is no more the property of the
State than it was before it fell into the hands of the enemy; it must
therefore, be restored to its former owner. But if, by the well-estab-
lished rules of public law, the title to the captured property has be-
come vested in the first captor, the former owner cannot claim its
restoration from the recaptor, because his original title has been ex-
tinguished.
The jus postliminic of the Roman law applied almost exclusively to
questions of private rights, but the principles of natural justice em-
bodied in that law are applicable to States as well as to individuals,
in their intercourse with each other. It has therefore, been held in
modern times to extend not only to individuals of the same State, but
also to individuals of different States, and to the international rela-
tions of States themselves.
Halleck, pp. 866, 867.
When postliminy takes effect.
Postliminy is considered as taking effect the moment that the per-
sons, or property taken on land by an enemy, come within their sov-
ereign's territory, or within places under his command, or into the
hands of his officers or agents. But, in cases of prize and maritime
recapture, the question of restoration usually involves that of military
salvage, which must be determined by a court of competent jurisdic-
tion. Vessels and goods taken by the enemy as prizes, and recap-
tured by the principal belligerent, or his allies, must, therefore, be
brought infra praesidia, and adjudicated precisely the same as in
case of a prize.
Halleck, p. 67.
Effect of peace.
The right of postliminy belongs exclusively to a state of war, and
no longer exists after the conclusion of a treaty of peace. The inter-
vention of peace cures all defects of title to property of every kind,
acquired in war, and such title cannot be subsequently defeated in
favor of the original owner, not even in the hands of a neutral
possessor, who himself becomes an enemy. Such property may be
liable to capture as booty, or prize of war, the same as any other
property of that neutral, now an enemy, but it is not affected by the
right of postliminy. By the principle of uti possidetis, which, as
already stated, applies to every treaty of peace, unless otherwise
specially stipulated, all captured property is tacitly conceded to the
possessor, and, if recaptured in a subsequent war, it is subject to the
628
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
laws of capture, but not to those of postliminy. Nevertheless, there
are many cases where, the treaty of peace being silent, and the prin-
ciple of uti possidetis not applicable, it is necessary to resort to the
jus postliminii, in order to determine the true condition of things at
the time of the treaty, or the moment they were freed from the
pressure of the captor's force, as an enemy; in other words, whether,
when the captor ceases to be an enemy, the thing captured legally
becomes his property, or returns to the former owner. Hence, the
very intimate connection between treaties of peace and the rights of
postliminy.
Halleck, pp. 867, 868.
Persons and property of allies.
It is a general rule of international law, that allies in war make
but one party with the principal; the cause being common, the rights
and obligations are the same. It follows, therefore, that when per-
sons and things belonging to one of the allies, which have been taken
by the enemy, fall into the hands of another ally, they are subject
to the right of postliminy, and must be restored to their former con-
dition. The recapture by an ally is regarded the same as a recapture
by the principal, and vice versa. So, also, with respect to territory,
persons and things brought within the territory of one ally are
affected by the rights of postliminy precisely the same as if brought
within the territory of their own sovereign. But, if the ally does not
become an associate in the war, or a co-belligerent, and merely fur
nishes the succors stipulated by treaty, without coming to a rupture
with the enemy, his dominions are regarded as neutral, and are gov-
erned by the laws of neutrality.
Halleck, pp. 868, 869.
::
As affecting neutrals.
The right of postliminy, with respect to things, do not take effect
in neutral countries, because the neutral is bound to consider every
acquisition made by either party as a lawful acquisition, unless the
capture itself is an infringement of his own neutral jurisdiction or
rights. If one party were allowed in a neutral territory to enjoy
the right of claiming goods taken by the other, it would be a de-
parture from the duty of neutrality. Neutrals are bound to take
notice of the military rights which possession gives, and which is the
only evidence of right acquired by military force, as contradistin-
guished from civil rights and titles. The fact must be taken for the
law. But with respect to persons, it takes effect, not only in the
territory of the nation to which such persons belong, and in that of
his allies, but also in a neutral country; so that if a belligerent brings
his prisoners into a neutral territory he loses all control of them.
POSTLIMINY.
629
So, if prisoners escape from their captors, and reach a neutral ter-
ritory, they cannot be pursued and seized in such a territory, and
consequently, are restored to their former condition. Prisoners of
war who have given their parole, may, or may not, claim the right of
postliminy on reaching a neutral country, or coming again under the
power of their own nation according to the terms of their parole. If
left entirely free to return to their own country, subject to certain
stipulated conditions, such as not to serve again for a certain
period, or during the war, these conditions are not changed by re-
capture or rescue. But if they have only promised not to escape, or
to remain within certain limits assigned to them, if they are rescued
by their own party, or the place of their confinement falls into the
hands of their own nation or its allies, they are released from their
parole, and, by the right of postliminy, are restored to their former
state. So if, by the incidents of the war, prisoners, not free to return
to their own country, are brought into neutral territory, they are
entitled to the benefit of that right. But it must be remembered, that
prisoners brought into neutral ports on board a foreign ship of war,
or any prize of hers, are not entitled to the right of postliminy, be-
cause such vessels in neutral ports have a right of ex-territoriality,
and such prisoners are not regarded as within neutral jurisdiction.
(Wheaton, Elem. Int. Law, pt. 4, ch. 4, $4; Phillimore, On Int. Law,
vol. 3, $$ 404, 405; Vattel, Droit des Gens, liv. 3, ch. 7, § 132; ch. 14,
$8 208, 210; Bynkershoek Quaest. Jur. Pub., lib. 1, caps. 15, 16; Kent,
Com. on Am. Law, vol. 1, p. 109; Duponceau, Translation of Bynker-
shoek, note, pp. 116, 117; Polybius, Hist., lib. 3, cap. 3; Cushing,
Opinions of U. S. Attys Gen’l, vol. 7, p. 123; Bello, Derecho Inter-
nacional, pt. 2, cap. 4, § 8; Heffter, Droit International, ss 189, 190;
Cocceius, Grotius Illus., lib. 3, cap. 8, § 9; The Sophia, 6 Rob. Rep., p.
138; The Purissima Concepcion, 6 Rob. Rep., p. 45; The Amistad de
Rues, 5 Wheat. Rep., p. 390.)
Halleck, pp. 869, 870.
When title divested.
Naturally, property of all kinds is recoverable by the right of post-
liminy, and there is no intrinsic reason why movables should be ex-
cepted from the rule. Such, indeed, was the ancient practice, and
by the jus postliminii of the Romans, certain articles, on being re-
covered from the enemy, were required to be restored to their former
owners. But the difficulty of recognizing things of this nature, with
any degree of certainty, and the endless disputes which would spring
from a revendication of them, have introduced a contrary practice
in modern times; and the title of the former owner to all booty is
considered as completely divested by a firm possession of the captor
630
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of twenty-four hours. Some apply the same rule to cases of prize,
while others, as has already been shown, require the sentence of a
competent court. (Vattel, Droit des Gens, liv. 3, ch. 14, $ 209; Kent,
Com. on Am. Law, vol. 1, p. 108; Wheaton, Elem. Int. Law, pt. 1,
ch. 2, § 17; Phillimore, On Int. Law, vol. 3, § 586; Chitty, Law of
Nations, pp. 94, 96; Riquelme. Derecho Pub. Int., lib. 1, tit. 1, cap.
12; Bello, Derecho Internacional, pt. 2, cap. 4, § 8; Heffter, Droit
International, $ 190; Textor, Synopsis Juris Gent., 18, 102; Cicero,
Topica, cap. 8.)
Halleck, p. 870.
Immovable property.
Real property is easily identified, and is not of a transitory nature;
it is therefore, considered to be completely within the right of post-
liminy. The rule, however, cannot be frequently applied to the case
of mere private property, which, by the general rule of modern na-
tions, is exempt from confiscation. There are some exceptions to this
general rule, and wherever private real property has been confiscated
by the enemy, and again comes into the possession of the nation to
which the individual owner belongs, it is subject to the right of
postliminy. The effect of complete conquest and retrocession will be
considered in another paragraph. Grotius proposes the question
with respect to the immovable property belonging to a prisoner of
war, but situate in a neutral country. But Vattel summarily disposes
of it with the just remark, that nothing belonging to a prisoner car
be disposed of by the captor, unless he can seize it and bring it within
his own possession. But the rule becomes of great practical impor-
tance when applied to questions arising out of alienations of real
property belonging to the government, made by the opposite bellig-
erent while in the military occupation of the country. We have al-
ready stated, that the purchaser of any portion of the national do-
main in the occupation of an enemy, previous to the confirmation or
consummation of the conquest, takes it at the peril of being evicted
by the original sovereign owner when he is restored to his dominions.
But if the victor be so firmly established in possession, that opposi-
tion to his rule is overcome or virtually ceases, or if the conquest is
accompanied by internal revolution and a recognition of the new
government, in other words, if the conquest is legally complete, alien-
ations of the public domain will not be annulled, even though the
former sovereign should be restored. (Vattel, Droit des Gens, liv. 3,
ch. 14, § 212; Kent, Com. on Am. Law, vol. 1, pp. 108, 109; Wheaton,
Elem. Int. Laro, pt. 4, ch. 2, § 17; Lieber, Political Ethics, b. 2, § 86;
Phillimore, On Int Law, vol. 3, $$ 406, 539-574, 583; l'ide ante,
chapters xxxii and xxxiii.)
Halleck, pp. 870, 871.
POSTLIMINY.
631
Towns, provinces, and territories.
Towns, provinces, and territories, which are retaken from the con-
queror during the war, or which are restored to their former sovereign
by the treaty of peace, are entitled to the right of postliminy, and the
original sovereign owner on recovering his dominion over them,
whether by force of arms or by treaty, is bound to restore them to
their former state. In other words, he acquires no new rights over
them either by the act of recapture or of restoration. The conqueror
loses the rights which he had acquired by force of arms; but those
rights are not transferred to the former sovereign, who resumes his
dominion over them precisely the same as though the war had never
occurred. He rules, not by a newly acquired title which relates back
to any former period, but by his ancient title, which, in contempla-
tion of law, has never been divested. The places which are recon-
quered or restored, therefore returns to him with the rights and
privileges which they would have possessed if they had never fallen
into the power of the enemy. But if the conquered provinces and
places are confirmed to the conqueror by the treaty of peace, or other-
wise, they can claim no right of postliminy. Their condition is
established by the rights of conquest and the will of the conqueror.
The right or title of the 'new sovereign is not that of the original
possessor, and therefore is not subject to the same limitation or
restriction. It had its origin in force, and is confirmed by treaty, in-
corporation, length of possession, or otherwise. It dates back to the
actual conquest, but not to any period anterior to the conquest. The
relations between the conquered and the conqueror are therefore very
different from those which existed between the conquered and their
former sovereign. They have, in their new condition, such rights
only as belongs to them by the general law of nations, and the stipu-
lations of the treaty of cession, or such others as may be given to them
by the will of the conqueror. If, however, the provinces and places
have not themselves been considered as having been in a hostile at-
titude to the conqueror, he is regarded as merely replacing the former
sovereign in his rights over them. They are regarded as acquired by
conquest, rather than as actually conquered, and, in such cases, the
acquisition or change of sovereignty is not usually attended by loss
of rights. But in whatsoever way the conquest is completed it oper-
ates as an entire severance of the relations between the conquered ter-
ritory and the former sovereignty. A subsequent restoration of such
territory to its former sovereign is regarded in law as a retrocession,
and carries with it no rights of postliminy. When the inhabitants
of such conquered territory become a part of the new state they must
bear the consequence of the transfer of their allegiance to a new
sovereign; and should they subsequently fall into the power of their
632
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
former sovereign, he is, in turn, to be regarded as a conqueror, and
they cannot claim, as against him, any rights of postliminy. The
correctness of the principle of international law, as stated above, is
never disputed; but there is great difficulty in determining when
the conquest is complete, or in drawing the precise line between ab-
solute conquest and mere military occupation. This distinction has
been discussed in the preceding chapters. (Heffter, Droit Interna-
tional, § 188; Chitty, Law of Nations, pp. 95, 96; Bynkershoek,
Quaest. Jur. Pub., lib. 1, cap. 16; Bello, Derecho International, pt.
2, cap. 4, § 8; Rayneval, Inst. du Droit Nat., liv. 3, ch. 18; Vattel,
Droit des Gens, liv. 3, ch. 14, SS 213, 214; Leiber, Political Ethics,
b. 2, § 86; Wheaton, Elem. Int. Law, pt. 1, ch. 2, § 18; pt. 4, ch. 2, § 16;
Vide ante chapters xxxii and xxxiii.)
Halleck, pp. 871-873.
1
Subjugated State.
A state is sometimes entirely subjugated and its personality ex-
tinguished by a compulsory incorporation into another sovereignty.
As the towns, provinces, and territories of which it was composed
now become subordinate portions of another society, their relations
to each other and to the new state result from the will of the new
sovereign. If, by a subsequent revolution, the extinguished state
resumes its independence, and again becomes a distinct and sub-
stantive body, its constituent parts may resume their former rela-
tions, or assume new positions and rights, according to the character
of the society which is recognized, and the constitution or govern-
ment which it adopts. This is a question of local public law, rather
than of international jurisprudence. But if the subjugated state is
delivered by the assistance of another, the question of postliminy
may arise between the restored state and its deliverer. There are
two cases to be considered : first, where the deliverance is effected
by an ally, and second, where it is effected by a friendly power un-
allied. In either case, the state so delivered, is entitled to the right
of postliminy. If the deliverance be effected by an ally, the duty
of restoration is strict and precise, for an ally can claim no right of
war against its co-ally. If the deliverance be effected by a state
unallied but not hostile, the reëstablishment of the rescued nation in
its former rights is certainly the moral duty of the deliverer. He
can claim no rights of conquest against the friendly state which he
rescues from the hands of the conqueror. How much stronger, then,
is the duty of restoration where the deliverance is effected with the
concurrence and assistance of the subjugated people, and under the
expectation on their part of recovering their ancient rights and privi-
leges. A denial of the right of postliminy, in such a case would be
contrary to the law of nations and a breach of public morality.
POSTLIMINY.
633
(Puffendorf, de Jur. Nat. et Gent., lib. 8, cap. 6, § 26; Vattel, Droit
des Gens, liv. 3, ch. 14, § 213; Wheaton, Hjat. Law of Nations, p. 490;
Phillimore, On Int. Law, vol. 1, § 125; Bynkershoek, Quaest. Jur.
Pub., lib. 1, cap. 16.)
Halleck, pp. 873, 874.
Property captured at sea.
Having considered the law of postliminy applicable to the retak-
ing of movable and immovable property captured on land, it remains
to examine its application to the retaking of prizes, or property cap-
tured at sea,—what was called in latin, recuperatio, and is known in
English law, as recapture. There is a manifest difficulty in applying
the right of postliminy to maritime recaptures, on account of the
uncertainty of the time when the title of the original proprietor is
completely divested. If all nations had adopted the principle, that
condemnation, by a competent court of prize, was necessary, in all
cases, to effect a change of ownership, the rules of postliminy
applicable to prizes, would be the same in all countries; but as this
principle has not been universally adopted, there is not, in practice,
any well established rule of maritime recapture. Different text-
writers have advocated different principles, and different legis-
lators have enacted different laws, and, as a consequence, the prize
courts of different countries have adopted different rules of decision.
(Phillimore, On Int. Law, vol. 3, § 407; Wheaton, Elem. Int. Law,
pt. 4, ch. 2, § 12; The Santa Cruz, 1 Rob. Rep., pp. 58–63; Bello,
Derecho Internacional, pt. 2, cap. 5, $ 6; Heffter, Droit International,
§ 191; Hautefeuille, Des Nations Neutres, tit. 13, ch. 3; Jouffroy,
Droit Maritime, p. 313; Poehls, Seerecht, etc., b. 4, SS 509, et seq. ;
Kaltenborn, Seerecht, etc., b. 3, p. 378; Dalloz, Repertoire, verb.
Prises Maritime, sec. 3; Pistoye et Duverdy, Des Prises, tit. 7; Man-
ning, Law of Nations, p. 141.)
Halleck, p. 875.
As affected by treaties and laws.
Every power is obliged to conform to the law of nations, relative
to postliminy, where the interest of neutrals are concerned, unless
otherwise regulated by treaty stipulations. But such conventions or
treaty stipulations establish a factitious right, which relates only to
the contracting parties, and cannot bind others. So, with respect to
allies, two allies may enter into an agreement by which the rights of
postliminy may be restricted or extended, as between themselves, but
such agreement can in no way affect the rights of postliminy of the
third co-ally, who is not a party to it. His rights and duties in that
respect, are governed and regulated by the rules of postliminy, which
are recognized and established by the law of nations. But, in many
110678-19
41
634
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
cases, as already remarked, there is no recognized and well estab-
lished rule of international·law, which can be applied. So of munic-
īpal laws, they may modify the right of postliminy in its application
to cases arising between the subjects of the same belligerent state,
but they cannot change it so as to prejudice the absolute rights of
citizens of other states, whether allies or neutrals. In other words,
municipal statutes cannot deprive the subject of an ally of the
benefit of postliminy, in case of recapture, nor take from the subject
of a neutral state what he holds by a title, which is regarded as valid
by the law of nations. They may, however, give to both, certain
benefits of postliminy, which they could not claim under the well
established principles of the law of nations as absolute rights. Such
has been the general character of the modifications of postliminy
which have been made, or attempted, by municipal laws and regula-
tions. (Bello, Derecho Internacional, pt. 2, cap. 4, § 8; cap. 5, § 6;
Kent, Com. on Am. Law, vol. 1, p. 111; Wheaton, Elem. Int. Law,
pt. 1, ch. 1, § 12; Vattel, Droit des Gens, liv. 3, ch. 14, § 222; Heffter,
Droit International, $ 191.)
Halleck, p. 877.
In modern international law, the analogies of the Roman post-
liminy are extended, under the same name, and with some changes.
The term is used in relation to all kinds of property and of status.
Captivity has now no effect on the political status of prisoners, after
a return home. By the Roman law, the master of a slave had the
benefit of postliminy in all cases of return during the war, by what-
ever means effected. It is the opinion of most jurists, that modern
international law will not now recognize that right; but that a slave,
freed by a conqueror, is fixed in freedom by the peace: and no neutral
State will now regard the right of the former master as continuing
for any purpose, after such emancipation. In case of recapture dur-
ing war, it is matter of State policy whether the slave is re-
mitted to his former owner. During the civil war, the United
States claimed that captured slaves, freed and enrolled in the army of
the Union, and then recaptured, must be treated as prisoners of war;
while the rebels contended that they reverted to their masters by
postliminy. Postkiminy is applied to all lands; for the belligerent
occupant does not acquire absolute title to them, but only the usu-
fruct. As to all movables, the tendency of modern times is to make
the title of the captor absolute, and to exclude postliminy. In mari-
time captures, it is excluded when the capture is complete, unless by
statute or treaty. In capture of movables on land, if the capture is
complete, and carries with it by international law a change of owner-
ship, the rights of the original owner are gone; and recapture by the
forces of his State leaves it matter of State policy whether he
POSTLIMINY.
635
shall regain his title, and on what terms. If the treaty of peace is
silent on the subject, it is presumed to leave the title in the possessor.
Wheaton, pp. 441, 442, Dana's note 169.
The jus postliminii was a fiction of the Roman law, by which per-
sons or things taken by the enemy were held to be restored to their
former state, when coming again under the power of the nation to
which they formerly belonged. It was applied to free persons or
slaves returning postliminii; and to real property and certain mov-
ables, such as ships of war and private vessels, except fishing and
pleasure boats. These things, therefore, when retaken, were restored
to the original proprietor, as if they had never been out of his con-
trol and possession. Grotius attests, and his authority is supported
by that of the Consolato del Mare, that by the ancient maritime law
of Europe, if the thing captured were carried infra præsidia of the
enemy, the jus postliminii was considered as forfeited, and the former
owner was not entitled to restitution. Grotius also states, that by the
more recent law established among the European nations, a posses-
sion of twenty-four hours was deemed sufficient to divest the property
of the original proprietor, even if the captured thing had not been
carried infra' præsidia. And Loccenius considers the rule of twenty-
four hours' possession as the general law of Christendom at the time
when he wrote. So, also, Bynkershoek states the general maritime
law to be, that if a ship or goods be carried infra præsidia of the
enemy, or of his ally, or of a neutral, the title of the original pro-
prietor is completely divested.
Wheaton, pp. 461, 462.
Property of allies.
Sir William Scott, in delivering the judgment of the English
Court of Admiralty, in the case of the Santa Cruz and other Portu-
guese vessels recaptured, in 1796 and 1797, from the common enemy
by a British cruiser, stated that it was certainly a question of much
curiosity to inquire what was the true rule on this subject. “When
I say the true rule, I mean only the rule to which civilized nations,
attending to just principles, ought to adhere; for the moment you
admit, as admitted it must be, that the practice of nations is various,
you admit that there is no rule operating with the proper force and
authority of a general law. It may be fit there should be some rule,
and it might be either the rule of immediate possession, or the rule of
pernoctation and twenty-four hours' possession; or it might be the
rule of bringing infra præsidia; or it might be a rulė requiring an
actual sentence or condemnation : either of these rules might be suffi-
cient for general practical convenience, although in theory perhaps
636
SELECTED TOPICS CONNECTED WITH LAWS OF. WARFARE.
one might appear more just than another; but the fact is that there
is no such rule of practice. Nations concur in principles, indeed, so
far as to require firm and secure possession; but these rules of evi-
dence respecting that possession are so discordant, and lead to such
opposite conclusions, that the mere unity of principle forms no uni-
form rule to regulate the general practice. But where the public opin-
ion of European States more distinctly agreed on any principle, as
fit to form the rule of the law of nations on this subject, it by no means
follows that any one nation would lie under an obligation to observe
it. That obligation could only arise from a reciprocity of practice
in other nations; for, from the very circumstance of the prevalence
of a different rule among other nations, it would become not only
lawful, but necessary to that one nation to pursue a different conduct:
for instance, were there a rule prevailing among other nations, that
the immediate possession, and the very act of capture should divest
the property from the first owner, it would be absurd in Great
Britain to act toward them on a more extended principle, and to lay
it down as a general rule, that a bringing infra præsidia, though
probably the true rule, should in all cases of recapture be deemed
necessary to divest the original proprietor of his right. The effect
of adhering to such a rule would be gross injustice to British sub-
jects; and a rule, from which gross injustice must ensue in practice,
can never be the true rule of law between independent nations; for
it cannot be supposed to be the duty of any country to make itself
a martyr to speculative propriety, were that established on clearer
demonstration than such questions will generally admit. Where
mere abstract propriety, therefore, is on one side, and real practical
justice on the other, the rule of substantial justice must be held to
be the true rule of the law of nations between independent States.
“If I am asked, under the known diversity of practice on this
subject, what is the proper rule for a State to apply to the recaptured
property of its allies? I should answer, that the liberal and rational
proceeding would be to apply in the first instance the rule of that
country to which the recaptured property belongs. I admit the prac-
tice of nations is not so; but I think such a rule would be both liberal
and just. To the recaptured, it presents his own consent, bound up
in the legislative wisdom of his own country; to the recaptor, it
cannot be considered as injurious, where the rule of the recaptured
would condemn, whilst the rule of the recaptor prevailing among
his own countrymen, would restore, it brings an obvious advantage;
and even in case of immediate restitution, under the rules of the re-
captured, the recapturing country would rest secure in the reliance
of receiving reciprocal justice in its turn.
“It may be said, what if this reliance should be disappointed ?-
Redress must then be sought from retaliation; which, in the disputes of
POSTLIMINY.
637
1
independent States, is not to be considered as vindictive retaliation,
but as the just and equal measure of civil retribution. This will be
their ultimate security, and it is a security sufficient to warrant the
trust. For the transactions of States cannot be balanced by minute
arithmetic; something must, on all occasions, be hazarded on just
and liberal presumption.
“Or it may be asked, what if there is no rule in the country of
the recaptured !-I answer, first, this is scarcely to be supposed; there
may be no ordinance, no prize acts immediately applying to recap-
ture; but there is a law of habit, a law of usage, a standing and
known principle on the subject, in all civilized commercial countries;
it is the common practice of European States, in every war, to issue
proclamations and edicts on the subject of prize; but till they appear,
Courts of Admiralty have a law and usage on which they proceed,
from habit and ancient practice, as regularly as they afterwards
conform to the express regulations of their prize acts. But secondly,
if there should exist a country in which no rule prevails,--the re-
capturing country must of necessity apply its own rule, and rest on
the presumption that that rule will be adopted and administered in
the future practice of its allies.
“ Again, it is said that a country applying to other countries their
own respective rules, will have a practice discordant and irregular:
it may be so; but it will be a discordance proceeding from the most
exact uniformity of principle; it will be idem per diversa. It is asked,
also, will you adopt the rules of Tunis and Algiers? If you take the
people of Tunis and Algiers for your allies, undoubtedly you must;
you must act towards them on the same rules of relative justice on
which you conduct yourselves towards other nations. And upon the
whole of these objections it is to be observed, that a rule may bear
marks of apparent inconsistency, and yet contain much relative fit-
ness and propriety; a regulation may be extremely unfit to be made,
which yet shall be extremely fit, and shall indeed be the only fit rule
to be observed towards other parties, who have originally established
it for themselves.
“So much it might be necessary to explain myself on the mere
question of propriety; but it is much more material to consider, what
is the actual rule of the maritime law of England on this subject. I
understand it to be clearly this, that the maritime law of England, hav-
ing adopted a most liberal rule of restitution or salvage with respect to
the recaptured property of its own subjects, gives the benefit of that
rule to its allies, till it appears that they act towards British property
on a less liberal principle. In such a case, it adopts their rule, and
treats them according to their own measure of justice. This I
consider to be the true statement of the law of England on
this subject. It was clearly so recognized in the case of The San
638
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Jago; a case which was not, as it has been insinuated, decided on
special circumstances, nor on novel principles, but on principles of
established use and authority in the jurisprudence of this country.
In the discussion of that case, much attention was paid to an opinion
found among the manuscript collections of a very distinguished
practitioner in this profession, (Sir E. Simpson,) which records the
practice and the rule as it was understood to prevail in his time.
The rule is: that England restores, on salvage, to its allies; but if
instances can be given of British property retaken by them and
condemned as prize, the Court of Admiralty will determine their
cases according to their own rule."
Wheaton, pp. 462-465; The Santa Cruz, 1 C. Rob. 58–63.
American law on recaptures.
The revision of the Prize Code of the United States, by statute
of June 30, 1864, ch. 174, repeals all former statutes on the subject
of prize. Its provisions as to recapture are condensed into a single
section (sec. 29). It adopts the rule of restoration at any time
before condemnation by a competent authority. If the recaptured
property belonged to “persons residing in or under the protection of
the United States," restoration is to be made “upon the payment
of such sum as the court may award as salvage, costs, and expenses."
If the property belong to persons “permanently resident within the
territory and under the protection of any foreign prince, government,
or State in amity with the United States, and, by the law or usage
of such prince, government, or State, the property of a citizen of
the United States would be restored under like circumstances of re-
capture, it shall be adjudged to be restored to such owner upon his
claim, upon such terms as, by the law or usage of such a prince,
government, or State, would be required of a citizen of the United
States under like circumstances of recapture; and, when no such law
or usage shall be known, it shall be adjudged to be restored upon the
payment of such salvage, costs, and expenses as the court shall
order.” In all cases where the court is to determine the amount of
salvage, it is to be, not by a fixed rule, as before, but "a meet and
competent sum, according to the circumstances of each case." But
nothing in the act is to be “construed to contravene any treaty of
the United States." Accordingly, if by any treaty there is to be
restoration without salvage, or a fixed proportion is to be given as
salvage, the treaty provision will govern the court. (Act 30th June,
1864, ch. 174, 29. U. S. Laws, xiii. 314.) In the case of the Lilla
(Sprague's Decisions, ii.; and Law Reporter, xxv. p. 92), Judge
Sprague decided that restitution should be made of the prize to citi-
zens of the United States, her former owners, although she had been
condemned as prize by a court at Charleston, S. C., established by
POSTLIMINY.
639
the rebel government as a prize court. This was on the clear ground
that a court of the United States could not recognize as valid, or give
any effect to, an act of such a tribunal in the case of property of its
own citizens.
Wheaton, p. 466, Dana's note 175.
The British law of military salvage.
The present British law of military salvage was established by the
statutes of the 43d Geo. III, ch. 160, and the 45th Geo. III, ch. 72,
which provide that any vessel, or goods therein, belonging to British
subjects, and taken by the enemy as prizė, which shall be retaken,
shall be restored to the former owners, upon payment for salvage of
one eighth part of the value thereof, if retaken by His Majesty's
ships; and if retaken by any privateer, or other ship or vessel under
His Majesty's protection, of one sixth part of such value. And if
the same shall have been retaken by the joint operation of His Ma-
jesty's ships and privateers, then the proper court shall order such
salvage to be paid as shall be deemed fit and reasonable. But if the
vessel so retaken shall appear to have been set forth by the enemy as
a ship of war, then the same shall not be restored to the former
owners, but shall be adjudged lawful prize for the benefit of the
captors.
Wheaton, pp. 466, 467.
British prize acts.
The British Parliament passes prize acts usually to meet each new
war. A royal proclamation declares the royal intention, of the royal
bounty, to give to captors certain shares, or the whole, as may be, of
prizes captured in the existing war, and regulates the distribution
of prize-money among captors. An Act of Parliament is passed at
the same time, referring to the proclamation, and establishing, ap-
parently independently, the same rights in captors and rules for dis-
tribution. It is singular, that in none of the British prize decisions
is this peculiarity noticed; and, indeed, it is very difficult to learn
from them what is the source of authority for the distribution of
prizes. The explanation of this twofold action probably is, that
while it is not questioned that all prizes belong to the crown, yet
Parliament does deny the right of the crown to give away property
which it holds strictly in its sovereign or public capacity, as a trust;
and takes the ground, that prizes are of this character, and so con-
firms the royal grant.
The last prize act 27 & 28 Victoria, $ 40) provides that property
of a British subject, recaptured from a public enemy by a king's ship,
shall be restored on the payment of one-eighth of its value, and, in
640
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
cases of extraordinary merit, of not exceeding one-quarter, in lieu
of salvage; but, if the recaptured vessel had been " set forth or used
as a ship or vessel of war” by the enemy, it is not restored.
This statute differs from the United States statute now in force
in three particulars: (1) It regulates salvage by a fixed rule, while
that of the United States gives a meet salvage, according to the cir-
cumstances of each case. (2) It puts no limit of time or event to the
right of restoration, while that of the United States does not restore
after condemnation by a competent tribunal. (3) The United States
statute makes no exception in case of vessels set forth or used as
vessels of war.
Wheaton, p. 467, Dana's note, 176.
American law on recaptures.
The act of Congress of the 3d March, 1800, ch. xiv. $ $ 1, 2, pro-
vides that, in case of recaptures of vessels or goods belonging to per-
sons resident within, or under the protection of the United States,
the same not having been condemned as prize by competent authority,
before the recapture, shall be restored on payment of salvage of one
eighth of the value if recaptured by a public ship; and if the re-
captured vessel shall appear to have been set forth and armed as a
vessel of war before such capture, or afterwards, and before the re-
capture, then the salvage to be one moiety of the value. If the re-
captured vessel previously belonged to the Government of the United
States, and be unarmed, the salvage is one sixth, if recaptured by a
private vessel, and one twelfth, if recaptured by a public ship; if
armed, then the salvage to be one moiety if recaptured by a private
vessel, and one fourth if recaptured by a public ship. In respect to
public armed ships, the cargo pays the same rate of salvage as the
vessel, by the express words of the act; but in respect to private
vessels, the rate of salvage (probably by some unintentional omission
in the act) is the same on the cargo, whether the vessel be armed or
unarmed.
It will be perceived, that there is a material difference between
the American and British laws on this subject; the act of Parliament
continuing the jus postliminii forever, between the original owners
and recaptors, even if there has been a previous sentence of con-
demnation, unless the vessel retaken appears to have been set forth
by the enemy as a ship of war; whilst the act of Congress continues
the jus postliminii until the property is divested by a sentence of
condemnation in a competent court, and no longer; which was also
the maritime law of England, until the statute stepped in, and, as to
British subjects, revived the jus postliminii of the original owner.
Wheaton, pp. 467, 468; The Adeline, 9 Cranch 244.
POSTLIMINY.
641
French law on recaptures.
The present position of the French law, as derived from the ordi-
nance of 1681, and that of 15th June, 1779, and the arrêté du 2
Prairial, an 11, is this: If the recapture be made by a public ship,
the property is restored, whether recaptured before or after the lapse
of twenty-four hours; if by a private ship, only in case of recapture
before the lapse of that time. The salvage in case of a public ship
is one-tenth of the value of the prize, if recaptured after twenty-four
hours, and one-thirtieth if before that time. In case of recapture by
a private ship, the salvage is one-third. As has been seen, the priva-
teer does not make restitution after twenty-four hours. The expenses
of the recaptors are borne by the recaptured property. The recap-
tured vessels of an ally stand on the same ground with those of
French subjects. Hautefeuille, des Nat. Neutr. tit. 13, ch. 3, tom. iji,
p. 380. Pistoye et Duverdy, des Prises, tit. 7, tom. ii, pp. 104, 109.
Halleck, Inter. Law, 881. Phillimore, Intern. Law, iii. $$ 413, 418.
Wheaton, p. 470, Dana's note, 178.
" Setting forth as a vessel of war.'
What constitutes a setting forth as a vessel of war, has been deter-
mined by the British Courts of Prize, in cases arising under the
clause in the act of Parliament, which may serve for the interpreta-
tion of our own law, as the provisions are the same in both. Thus
it has been settled, that where a ship was originally armed for the
slave-trade, and after capture an additional number of men were put
on board, but there was no commission of war, and no additional
arming, it was not a setting forth as a vessel of war under the act.
But a commission of war is decisive if there be guns on board. And
where the vessel, after the capture, has been fitted out as a privateer,
it is conclusive against her, although when recaptured, she is navi-
gating as a mere merchant ship; for where the former character of
a captured vessel had been obliterated by her conversion into a ship
of war, the legislature meant to look no further, but considered the
title of the former owner for ever extinguished. Where it appeared
that the vessel had been engaged in the military service of the
enemy, under the direction of his minister of the marine, it was held
as a sufficient proof of a setting forth as a vessel of war. So where
the vessel is armed, and is employed in the public military service of
the enemy by those who have competent authority so to employ it,
although it be not regularly commissioned. But the mere employ-
ment in the enemy's military service is not sufficient; but if there be
a fair semblance of authority in the person directing the vessel to be
so employed, and nothing upon the face of the proceedings to in-
642
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
validate it, the court will presume that he is duly authorized; and the
commander of a single ship may be presumed to be vested with this
authority as commander of a squadron.
Wheaton, pp. 472, 473; The Horatio, 6 C. Rob. 320; The Ceylon, 1 Dod-
son, 105; The Actif, Edwards, 185; 3 C. Rob. 65; The Georgianna,
1 Dodson, 397.
Salvage on recapture.
It is no objection to an allowance of salvage, or a recapture, that
it was made by a non-commissioned vessel; it is the duty of every
citizen to assist his fellow citizens in war, and to retake their prop-
erty out of the enemy's possession; and no commission is necessary
to give a person so employed a title to the reward which the law
allots to that meritorious act of duty. And if a convoying ship re-
captures one of the convoy, which has been previously captured by
the enemy, the recaptors are entitled to salvage. But a mere rescue
of a ship engaged in the same common enterprise gives no right to
salvage.
To entitle a party to salvage, as upon a recapture, there must have
been an actual or constructive capture; for military salvage will
not be allowed in any case where the property has not been actually
rescued from the enemy. But it is not necessary that the enemy
should have actual possession; it is sufficient if the property is com-
pletely under the dominion of the enemy. If, however, a vessel be
captured going in distress into an enemy's port, and is thereby
saved, it is merely a case of civil and not of military salvage. But
to constitute a recapture, it is not necessary that the recaptors should
have a bodily and actual possession; it is sufficient if the prize be
actually rescued from the grasp of the hostile captor. Where a
hostile ship is captured, and afterwards recaptured by the enemy,
and again recaptured from the enemy, the original captors are not
entitled to restitution on paying salvage, but the last captors are en-
titled to the whole rights of prize; for, by the first recapture, the right
of the original captors is entirely divested. Where the original cap-
tors have abandoned their prize, and it is subsequently captured by
other parties, the latter are solely entitled to the property. But if
the abandonment be involuntary, and produced by the terror of
superior force, and especially if produced by the act of the second
captors, the rights of the original captors are completely revived.
And where the enemy has captured a ship, and afterwards deserted
the captured vessel, and it is then recaptured, this is not to be con-
sidered as a case of derelict; for the original owner never had the
animus delinquendi, and therefore it is to be restored on payment
of salvage; but as it is not strictly a recapture within the Prize Act,
the rate of salvage is discretionary. But if the abandonment by
POSTLIMINY.
643
the enemy be produced by the terror of hostile force, it is a recap-
ture within the terms of the act. Where the captors abandon their
prize, and it is afterwards brought into port by neutral salvors, it has
been held, that the neutral Court of Admiralty has jurisdiction to
decree salvage, but cannot restore the property to the original bellig-
erent owners; for by the capture, the captors acquired such a right of
property as no neutral nation can justly impugn or destroy, and, con-
sequently, the proceeds, (after deducting salvage,) belong to the
original captors; and neutral nations ought not to inquire into the
validity of a capture between belligerents. But if the captors make
a donation of the captured vessel to a neutral crew, the latter are
entitled to a remuneration as salvors; but after deducting salvage,
the remaining proceeds will be decreed to the original owner. And
it seems to be a general rule, liable to but few exceptions, that the
rights of capture are completely divested by a hostile recapture,
escape, or voluntary discharge of the captured vessel. And the same
principle seems applicable to a hostile rescue; but if the rescue be
made by the neutral crew of a neutral ship, it may be doubtful how
far such an illegal act, which involves the penalty of confiscation,
would be held, in the prize courts of the captor's country, to divest
his original right in case of a subsequent recapture.
Wheaton, pp. 473-475; The Helen, 3 C. Rob. 224; The Wight, 6 .C.
Rob. 315; The Belle, Edwards, 66; The Franklin, 4 C. Rob. 147; The
Edward and Mary, 3 C. Rob., 305; The Pensamento Felix, Edwards,
116; The Astrea, 1 Wheat. 125; The Lord Nelson, Edwards, 79; The
Diligentia, 1 Dodson, 404; The Mary, 1 Wheat. 223; The Mary Ford,
3 Dallas, 188; The Adventure, 8 Cranch, 227; Hudson v. Guestier,
4 Cranch, 293, and 6 Cranch, 281.
Rescue by neutrals.
The law respecting rescue by neutrals has received full considera-
tion in the late case of the ship Emily St. Pierre. This was a Briti
vessel, captured by the United States blockading squadron, in the
act of breaking the blockade of Charleston, S. C., and ordered to
Philadelphia for adjudication in charge of a prize crew. The origi-
nal crew, by fraud and force, regained possession, and took the vessel
to Liverpool and restored her to the possession of her owners. Mr.
Adams applied to Earl Russell for a restoration of the vessel, on the
ground that the rescue was a violation of the law of nations, which
furnished sufficient cause for condemnation, and a breach of the duty
of a neutral, who is bound to submit to the adjudication of the
prize court of the captor. Earl Russell refused the demand on two
grounds,-first, that, as the rescue was not a violation of any munici-
pal law of England, and as the vessel was not in the custody of the
British Government, that government had no legal right to take her
from the hands of her owners, or to prosecute or proceed against the
644
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
vessel or the owners for any violation of law; and second, that, in
addition to the technical objection, the offence was solely one against
the laws of war made for the benefit of captors, which the captors
could assert and vindicate only in their own tribunals. Admitting
that rescue was ground for condemnation, he contended that the
decree could only be made by the belligerent prize court. No other
court, either of the belligerent or of a neutral country, had juris-
diction to condemn or restore property taken in war. If the private
neutral rescues his vessel by force, he takes all risks of the captor's
rights of force recognized by nations, but nothing more. The courts
and government of the neutral country cannot decide that the title
to the vessel has passed to the captors before condemnation by the
prize courts of the captor's country. All they can do is to restore to
the captor the temporary possessory right, which he has between
capture and condemnation. Such possessory right he held to be one
of force, which the captor's government could guard and assert by
condemnation or other penalty on the property, if in its possession,
through its prize court; but, even by the courts of the captor, the
neutral rescuer could not be personally punished, as for a crime. He
contended that it was not incumbent on neutral governments to make
laws to enforce such belligerent possessory rights against their own
citizens, any more than it is in the case of crimes committed by their
own citizens abroad, whom they do not even deliver up to the
offended government for trial, except by treaty stipulation; or in
case of violations of the revenue or embargo laws of other countries,
which they never even indirectly take active cognizance of; or in case
of successful breach of blockade.
In the course of the correspondence, Mr. Adams cited a parallel
case, in which the position of the two governments was reversed, as
early as 1799, that of the brig Experience. She was an American
vessel, captured (with two other vessels) by a British cruiser,
rescued by her crew, and brought to Philadelphia. By direction
of Lord Grenville, of Oct. 21, 1799, Mr. Liston demanded her restora-
tion by the American Government, by letter of May 2, 1800. The
Secretary of State, Mr. Pickering, by letter to Mr. Liston, of May
3, 1800, declined to interfere, and upon the ground that it was an
inchoate and belligerent right of captors, which the neutral govern-
ment cannot be expected to enforce against its own subjects; but
referred the British Minister to the Admiralty Courts of the United
States, giving no opinion on the question beyond declining executive
intervention.
The papers on the interesting question of the brig Experience were
searched for and exchanged between the two governments by both
Earl Russell and Mr. Adams; and Earl Russell stated that there
was no evidence in the Foreign Office that the opinion of the law-
POSTLIMINY.
645
officer of the crown had been taken in that case, or that any further
proceedings were had after the reply of Mr. Pickering. Mr. Adams,
on his part, did not press further the case of The Emily St. Pierre,
nor attempt proceedings in the Admiralty Courts of Great Britain.
It may therefore be considered as settled by these two cases, that
a neutral government is not required, by executive action, to restore
a private vessel of one of its citizens which has been rescued by her
crew from her captors before condemnation, on demand of the gov-
ernment of the captors. The possessory, belligerent right of the
captors is not to be enforced by neutral powers by any positive action
in the way of penalty or seizure for restitution. Whether the right
can be vindicated by a possessory suit by the captors in the Admiralty
Courts of the neutral, has not been judicially determined; but the
course of the political departments of both governments, and the rea-
soning on which they proceeded, seem to settle the judicial as well
as the political question.
[Correspondence of Earl Russell and Mr. Adams, from April 24,
1862, to July 21, 1862, U. S. Dip. Corr. 1862, pp. 75--148, at inter-
vals. See note 175, suprá, on Recaptures; and note 181, infrá, on
Salvage for Rescue or Recapture.]
Wheaton, pp. 475, 476, Dana's note, 183.
1
Recaptor's right of salvage.
As to recaptors, although their right to salvage is extinguished by
a subsequent hostile recapture and regular sentence of condemnation,
divesting the original owners of their property, yet if the vessel be
restored upon such recapture, and resume her voyage, either in con-
sequence of a judicial acquittal, or a release by the sovereign power,
the recaptors are redintegrated in their right of salvage. And re-
captors and salvors have a legal interest in the property, which can-
not be divested by other subjects, without an adjudication in a com-
petent court; and it is not for the government's ships or officers, or
for other persons, upon the ground of superior authority, to dis-
possess them without cause.
Wheaton, p. 476; The Charlotte Caroline, 1 Dodson, 192; The Blen-
denhale, 1 Dodson, 414.
Real property.
We have seen that a firm possession, or the sentence of a compe-
tent court, is sufficient to confirm the captor's title to personal prop-
erty or movables taken in war. A different rule is applied to real
property or immovables. The original owner of this species of prop-
erty is entitled to what is called the benefit of postliminy, and the
title acquired in war must be confirmed by a treaty of peace before it
can be considered as completely valid. This rule cannot be fre-
2
646
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
quently applied to the case of mere private property, which by the
general usage of modern nations is exempt from confiscation. It
only becomes practically important in questions arising out of aliena-
by the general operation of the cession of territory made by the
posite belligerent, while in the military occupation of the country.
Such a title must be expressly confirmed by the treaty of peace, or
by the general operation of the cession of territory made by the
enemy in such a treaty. Until such confirmation, it continues liable
to be divested by the jus postliminii. The purchaser of any portion
of the national domain takes it at the peril of being evicted by the
original sovereign owner when he is restored to the possession of his
dominions.
Wheaton, pp. 495, 496.
Effect of peace.
The jus postliminii is a right which belongs exclusively to a state
of war; and therefore a transfer to a neutral, before the peace, even
without a judicial sentence of condemnation, is valid, if there has
been no recovery or recapture before the peace. The intervention
of peace covers all defects of title, and vests a lawful possession in
the neutral, in the same manner as it quiets the title of the hostile
captor himself.
Wheaton, p. 717.
If, according to the received right of war a thing taken from the
enemy becomes the property of the captor, it might seem that, when
retaken, it ought to become the property of the second captor. But
since the captor's right comes to him from the state, the state may
decide how far he shall be rewarded, if at all, for his risks and
labor in retaking what had belonged to a fellow-subject. It seemed
inequitable that the original owner should wholly lose his right to
what had been recently his own, while the recaptor, an inhabitant
of the same, or of a friendly country, at the end of two acts of vio-
lence, came into possession of the same property. And yet, policy
as well as justice should hold out a prospect of reward for a recap-
ture, which the cruiser would otherwise be apt to shrink from, and
which brought with it its hazards. We are led, then, to the ques-
tions, when, and how far the rights of the original owner revert to
him, and to the right of salvage or the premium granted for recap-
ture. And as the return of property to its first owner appears in the
shape of the Roman doctrine of postliminy, it is necessary to explain
briefly what the Roman postliminy was, and how it differs from
that which is known to modern international law.
Woo'sey, pp. 247, 248.
POSTLIMINY.
647
History and modern doctrine.
By ancient jus gentium all things seized by the enemy became his
property, and thus free persons became slaves. The Romans re-
garded such a person, if a captive from among themselves, as suffer-.
ing capitis deminutio, or losing his status of freedom, precisely as a
foreigner would lose his, if taken by Romans. Suppose now such
a person to be recaptured, or ransomed, or to have escaped, it would be
hard to say what was his status on his return to Rome. To remove
all difficulty the jus postliminii was devised, as a legal fiction, ac-
cording to which he was treated as not having been away, or at least
as having only been absent from his threshold, and all his lost rights
or rights in abeyance were restored to him. The same jus was ex-
tended so as to cover certain kinds of things captured by the enemy,
namely, slaves, ships of war and transport, mules, horses, and land,
which thus returned on recapture to their original owner. Postliminy
had no application to civil war, where the factions were not enemies
in a political sense, nor to war with pirates, because they were rob-
bers, incapable of rights; but only to legitimate war between two
states. Nor could its advantages be open to a deserter or other be-
trayer of his post, or to one whom the state itself had given up to the
enemy. If a free person, taken in war, was ransomed by another,
whose tie of relationship to the captive did not oblige him so to act,
his rights seem not immediately to have reverted to him by jus
postliminii on his return to Roman soil, but he continued in the
relation to the ransomer not strictly of a slave, but of one whose
body could be held until that ransom was paid. By a law of the
later Roman empire, five years' service was equivalent to this ran-
som. If a slave taken by the enemy was thus ransomed, he remained
under the ransomer's control until his ransom was paid by his former
master. The ransomer within a certain time could not refuse to re-
store the slave on the offer of the ransom money, and then the jus
postliminii began.
It must be regarded as a striking illustration of the sway of
Roman law over the European mind, that the lawyers have taken
this road to help the first owner to his property after recapture. For
the application of the modern postliminy is quite different from that
of the Roman. (1.) As to the person: freemen, to whose status it
applied by Román law more than to anything else, do not lose their
status in modern times by captivity in war. They are absent, like
travelers or merchants, and their rights and obligations go on, as
far as personal presence is not necessary for their exercise. It is true,
indeed, that a prisoner of war escaping from a vessel in a neutral
port, is protected against recapture by this right, as he would be
among the Romans. But two nations might, if they pleased, agree
to give up such escaped captiyes; and that this is not done may be
648
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
best explained on the ground that the laws of one country do not
extend into the territory of another, and especially that the laws
of a war in which I have no part, ought not to affect my friend or
subject within my borders,—the principle in short which makes ex-
press conventions of extradition necessary. And, again, Roman post-
liminy applied to slaves, but as slavery is not sanctioned by the
modern law of nations (comp. § 74), it can obtain no application in
regard to them.
As for the private relations of returned captives, the Roman law
held marriage to cease with captivity, which is abhorrent to Chris-
tian doctrine. Public personal relations by modern law continue
after captivity, but the laws of each state determine how far their
advantages, like salary during absence, for example, can be claimed
on return to one's own country. The Roman law refused to admit
such claims. . (2.) As to the limit of time within which the jus post-
liminiż takes effect, we are not aware that Roman law contains any
definition. Modern usage gives complete possession of booty to the
enemy on land, after he has held it for twenty-four hours, so that
the former owner cannot claim it again from the purchaser; the
reason for which limit is the difficulty of identifying such articles
a ter a lapse of time. On the other hand, land is restored to its orig-
inal owner, until peace or destruction of national existence has trans-
ferred sovereignty to a conqueror. (3.) By modern law [except in
Great Britain), captured ships with the goods on board, carried
infra proesidia by the enemy and condemned, become absolutely his,
so that, if they are afterwards recaptured or repurchased by a neu-
tral, the former owner has nothing to do with them: their connec-
tion with him has wholly ceased. It is only in the interval between
capture and complete possession that the right of postliminy con-
tinues. This was otherwise by Roman law; the right affected all
those kinds of things which were under its operation at all, when
they came into the power of the enemy, and the more, the more clearly
they had passed into his dominium. (4.) As to limit of place, mod-
ein postliminy takes effect only within the territory of the captor or
his ally, with the single exception already mentioned of captives
escaping ashore in a neutral port. But the Roman, it seems most
probable, took effect within the borders of any friendly nation.
A nation may make what laws it pleases in regard to the recapture
of the goods of one of its subjects by another, but is bound to follow
the jus postliminii in cases affecting the property of neutrals.
Woolsey, pp. 248–251.
Salvage.
The laws of some states hold out special rewards to encourage the
capture of vessels, especially of commissioned vessels, of their ene-
mies. Such is the headmoney of five pounds, due under a section of
POSTLIMINY.
649
seas.
the British Prize Act, to all on board an armed vessel acting under
public.authority, for every man on board of a similar captured vessel
who was living at the beginning of the engagement. Such, too, in a
sense, are the advantages given to other vessels which have assisted
the capturing one, or started to render assistance, or even have been
near enough to intimidate the enemy. But the claim for compensa-
tion is far more reasonable when the crew of one vessel have saved
another and its goods from pirates, lawful enemies, or perils of the
This is called salvage, and answers to the claim for the ran-
som of persons which the laws of various nations have allowed. The
legislation of a particular state may withhold salvage from its citi-
zens or subjects, but cannot deprive a neutral or an ally of the exer-
cise of this right. In such cases national law will decide as between
vessels of the same country; and treaty, as between vessels of allied
powers. See the convention of 1854 between France and Great Brit-
ain on joint capture, in Lushington's “Manual,” p. 118.
The laws of different nations vary in the amount of reward which
they assign to the recaptors of vessels. In regard to the salvage to
be paid to our recaptors by the owners of foreign vessels and goods,
the law of the United States adopts the principle of reciprocity, meas-
uring the amount by that which is paid by the law of the state to
which the vessel belongs. In regard to the amount to be paid by
citizens or resident foreigners, the law contains various provisions, of
from one half to one twelfth of the value; more being granted for
the salvage of an armed vessel recaptured than of an unarmed, and
more to a private vessel recapturing than to a public armed vessel.
In no case is salvage allowed if the recapture occurs after condemna-
tion by a competent authority, since the property is regarded as
having passed over from the original owner to the captor. Nor is
a crew of a public vessel entitled to salvage for the recapture of an-
other public vessel of the same nationality. The provisions of the
law of the most important nations are given at length by Dr.
Wheaton. (“Elements," iv., 2, $ 367; $ 384.)
Woolsey, pp. 251, 252.
Consequences as applied to a nation.
“Grotius correctly states," says Bynkershoek, “that postliminy
takes effect even in the case of an entire nation, if it chance that the
might of an ally shall free it from the control of its enemy.”
(“Quaest, J. P.," i., 16.) A state, after temporary occupation, or
after the short-lived government of a conqueror, may be restored to
its pristine condition. Such was the case with Holland, part of
Germany, and Spain in the times of Napoleon. The interruption of
former rights and the actions of the conqueror give rise to several
110678–19-
42
650
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
perplexing questions in regard to the condition of such a country;
and as occupation is separated by no very distinct limits from “de-
bellation" or complete conquest, or at least as the occupier some-
times acts the conqueror, hereby, perhaps, the perplexity is increased.
We follow Heffter (188) principally, in our brief representation
of the rights and obligations of a state restored in this postliminary
way. (Comp. Phill., iii., 812 et seg, of ed. 2.)
Such restoration follows, as a matter of course, whenever the con-
quering occupant by treaty abandons his conquests, or is driven out,
whether by the inhabitants or by an ally. But if a third party dis-
possesses the conqueror', the state cannot, according to international
justice, recover its independent existence without his consent, although
this may be demanded by equity or humanity.
If mere occupation, without the assumption of the attributes of
gorernment, had taken place, everything goes back to the old state.
The restored regime can claim even from allies and neutrals property
which had passed over to them from the occupier, so far as the right
of war gave him no power to dispose of them.
If the occupant conqueror set up and carried on a new govern-
ment, then-
1. None of his changes in the earlier constitution, no mode of ad-
ministration, officer or law, has any claim to permanence.
2. No retroactive exercise of the powers of government, affecting
subjects or third persons, rightfully belongs to the restored regime,
so far as relations are concerned which pertained to the period of
occupation. Thus taxes for the interim cannot properly be col-
lected, on the ground that they would have been due to the old gov-
ernment if the occupation had not taken place. For the rights of
sorereignty, so far as they pertained to the old regime, had in fact
passed over into the hands of the new.
3. Whatever the government by conquest did in the legitimate
exercise of political power is valid. The new government succeeds
to it in its acquisitions and obligations, and cannot set aside its
doings on the ground that it had no right to exist. Thus what was
due to the usurping government in back-standing taxes, what it
acquired by treaty or otherwise, belongs to its successor. On the
other hand, if that government disposed of state property, or con-
tracted state debts, its proceedings here also are valid, inasmuch as it
represented the state. This has been denied, but not with justice,
except in those extreme cases, where the temporary government had
alienated property or borrowed money not in the exercise of political
authority nor for public purposes, but with the spirit of a plunderer.
(Comp. $$ 38, 104, beginning.)
Woolsey. pp. 2.52–254.
POSTLIMINY.
651
When territory which has been occupied and population which
has been controlled by an enemy comes again into the power of its
own state during the progress of a war, or when a state the whole
of which has been temporarily subjugated throws off the yoke which
has been placed upon it before a settled conquest has been clearly
effected, or finally when a state or portion of a state is freed from
foreign domination by the action of an ally before a conquest of it
has been consolidated, the legal state of things existing prior to the
hostile occupation is re-established. In like manner, when property
of
any of the kinds which have been mentioned as being susceptible of
appropriation during the course of hostilities is captured by an
enemy, and is then recaptured by the state to which it belongs or of
which the person to whom it belongs is a subject, or by an ally, before
the moment at which it so becomes the property of its captor that
third parties can receive a transfer of it, the owner is replaced in
legal possession of it. In all these cases the legal state of things
existing before the hostile occupation or capture is conceived of for
many purposes as having been in continuous existence.
The above rule is based upon what is called, by an unnecessarily
imposing name, the right of postliminium, from a somewhat distant
analogy to the jus postliminii of the Roman law. Properly it is
difficult to see that the so-called right has any ground for claiming
existence as such. Hostile occupation of territory being merely the
detention of property belonging to another, the control exercised over
its inhabitants being the mere offspring of military necessity, and
appropriation by conquest, in those cases in which the intention to
conquer is present, being incomplete during the continuance of war,
the rights of the original state person, where the life of the state is
momentarily suspended, or of the legal owner, where a portion of
its territory is cut off, remain untouched. The state is simply de-
prived temporarily of the means of giving effect to those rights;
and when the cause of the depriyation is taken away, it is not a
right, but the fact of power which revives. In the case therefore
of territory recovered after hostile occupation the right of post-
liminium is merely a kind of substantive dress which is given to the
negative fact that a legitimate owner is under no jwigation to recog-
nise as a source of rights the disorder which is brought into his
household by an intruder; and though the case of property sus-
ceptible of appropriation during war is not identical, since the right
of the enemy to deal with it as his own arises immediately that
effectual seizure is made, it is rendered closely analogous by the fact
that evidence of effectual seizure is only considered to be sufficient to
bind the other belligerent, or to warrant recognition by neutrals,
after the captured object has been taken into a safe place. In effect,
652
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the doctrine of postliminium amounts to the truistic statement that
property and sovereignty cannot be regarded as appropriated until
their appropriation has been completed in conformity with the rules
of international law.
Putting aside certain of the effects of postliminium, which are
mentioned by writers, but with which international law is not con-
cerned, such as its effect in reviving the constitution of the state,
there seem to be only four subjects connected with it which need to
be touched upon viz.
1. Certain limitations to the operation of the right in the case of
occupied territory.
2. The effect of acts done by an invader in excess of his rights.
3. The effect of the expulsion of an invader by a power not in
alliance with the occupied state.
4. Special usages with regard to property recaptured at sea.
Hall, pp. 505-507.
Extent of right.
As a general rule the right of postliminium goes no further than
to revive the exercise of rights from the moment at which it comes
into operation. It does not, except in a very few cases, wipe out the
effects of acts done by an invader, which for one reason or another
it is within his competence to do. Thus judicial acts done under his
control, when they are not of a political complexion, administrative
acts so done, to the extent that they take effect during the continu-
ance of his control, and the various acts done during the same time
by private persons under the sanction of municipal law, remain good.
Were it otherwise, the whole social life of a community would be
paralysed by an invasion; and as between the state and individuals
the evil would be scarcely less—it would be hard for example that
payments of taxes made under duress should be ignored, and it would
be contrary to the general interest that sentences passed upon crimi-
nals should be annulled by the disappearance of the intrusive gov-
ernment. Political acts on the other hand fall through as of course,
whether they introduce any positive change into the organisation of
the country, or whether they only suspend the working of that
already in existence. The execution also of punitive sentences ceases
as of course when they have had reference to acts not criminal by the
municipal law of the state, such for example as acts directed against
the security or control of the invader. Again, while acts done by an
invader in pursuance of his rights of administrative control and of
enjoyment of the resources of the state cannot be nullified in so far
as they have produced their effects during his occupation, they be-
come inoperative from the moment that the legitimate government
is restored. Thus—to recur to a case which has already been glanced
at in a slightly different aspect-in 1870-1 certain persons entered
POSTLIMINY.
653
into contracts with the German government for felling timber in
state forests in France. They were paid in advance, and the stipu-
lated fellings not having been finished at the time of the signature
of the treaty of peace between the two countries, the contractors
urged that as the German government was within its rights in caus-
ing the fellings to be made, the French government was bound to
allow them to be completed. The French government held that
the re-establishment of its own control had ipso facto nullified the
contracts, and on the occasion of the signature of the supplementary
convention of December 11, 1871, it made a declaration to that effect,
which was accepted by the German Government, as correct in point
of law. That French authority was re-established in the particular
case by a treaty of peace is unimportant, the effects of re-establish-
ment by treaty and in other ways being in such matters confessedly
identical.
Hall, pp. 507, 508.
State freed by power not its ally.
Some difference of opinion exists as to the effect of the expulsion
of an invader by a power not in alliance with the occupied state. As
the annexation of Genoa to Sardinia in 1815 forms the leading case
upon the subject, and is that to which all arguments have reference,
it may be as well to begin by stating it. In the spring of 1814 Lord
William Bentinck landed on the coast of Tuscany with a small
Anglo-Sicilian force, and learning that the city of Genoa was inade-
quately garrisoned, determined to attempt its capture. The results of a
couple of day's fighting induced the commandant to capitulate. The
place was surrendered; the garrison retired under the terms of the
capitulation to Nice; and the whole territory of the former republic
fell into the hands of England, by conquest as between itself and
France. The Genoese state had been destroyed in 1797, but the
British government, in making the treaty of Amiens, had refused
to acknowledge its destruction, and its formal union with France in
1805 had remained equally unrecognised. On the expulsion of the
French a local republican government was set up with the sanction,
and indeed at the suggestion, of Lord William Bentinck; but ulti-
mately the city with its attendant territory was annexed to Sardinia,
against the wishes of the inhabitants, in consequence of the general
territorial redistribution which was made at the Congress of Vienna.
Considerable feeling was excited in England by the latter occurrence,
and resolutions condemnatory of it were moved in the House of
Commons by Sir James Mackintosh. In the course of his speech in
support of them he argued that in the year 1797, when Genoa was
conquered by France, then at war with England, under pretence
of being revolutionised, the Genoese republic was at peace with Great
Britain; and consequently, in the language of the law of nations,
654
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
they were friendly states. Neither the substantial conquest in 1797,
nor the formal union of 1805, had ever been recognised by this king-
dom. When the British commander therefore entered the Genoese
territory in 1814, he entered the territory of a friend in the possession
of an enemy. Can it be inferred that he conquered it from the
Genoese people? We had rights of conquest against the French;
but what right of conquest would accrue from their expulsion as
against the Genoese? How could we be at war with the Genoese ? -
not as with the ancient republic of Genoa, which fell when in a state
of amity with us not as subjects of France, because we had never
legally and formally acknowledged their subjection to that power,
There could be no right of conquest against them, because there was
neither the state of war, nor the right of war. Perhaps the powers
of the continent, which had either expressly or tacitly recognised the
annexation of Genoa in their treaties with France. might consistently
treat the Genoese people as mere French subjects, and consequently
the Genoese territory as a French province, conquered from the
French government, which as regarded them had become the sov-
ereign of Genoa. But England stood in no such position :-in her
eye the republic of Genoa still of right subsisted. Genoa ought to
have been regarded by England as a friendly state, oppressed for a
time by the common enemy, and entitled to reassume the exercise of
her sovereign rights as soon as that enemy was driven from her
territory by a friendly force.
The views of Sir James Mackintosh have been very commonly
regarded as sound, but they are not admitted by all writers. Heffter
supposes, in agreement with the line of conduct pursued by England,
that a state freed by the exertions of a power which is not its ally
does not recover its existence as of course; and M. Bluntschli argues
that though the liberating power cannot dispose of the country
wholly without reference to the wishes of the population, yet that
a state which is neither able to defend itself in the first instance nor
to re-establish itself afterwards cannot be held to possess a clear
and solid right to existence, and at the same time the liberating
power has a right to be rewarded for its sacrifices, which indeed
cannot be supposed to have been made in a spirit of pure disinter-
estedness ;-in settling the future of the liberated country the inter-
ests and wishes both of it and of its liberator ought, he thinks, to
be taken into consideration.
It may probably be safely concluded that the opinions of Sir James
Mackintosh and his followers on the one hand and of MM. Heffter
and Bluntschli on the other both contain elements of truth. . As a
matter of common sense, there can be no question that conquest can-
not be held to be consolidated while a war continues which by any
reasonable chance may extend to the conquered territory, and that a
POSTLIMINY.
655
country which has been independent must be supposed to retain its
existence in law as between itself and a foreign state so long as the
latter has not recognized that conquest has taken place. The foreign
state cannot at the same moment deny proprietary rights to the in-
truder, and arrogate rights to itself which can only be derived from
the enemy character of the country which has been temporarily or
permanently subjugated. Nor does the fact that it has made sac-
rifices in ejecting the invader from the invaded territory alter its
legal position, whether the sacrifices have been made disinterestedly
or not. It was not obliged to make them. On the other hand it
cannot be placed in a worse position by being at war with the in-
trusive state than it would otherwise have held. The legal effects
of a war are not modified by the fact that one of the parties to it is
waging another wholly distinct war at the same time. If therefore a
conquest seems, either from the attitude taken up by the conquered
population towards the victor, or from his apparent solidity of pos-
session, to be so settled that a state would be justified if at peace
with him in recognizing it as definitive, there can be no reason for
denying to an enemy the right of making up its own mind whether
occupation continues or conquest has taken place;-he is merely
prevented by the nature of the relation existing between him and
the invader from showing what opinion he has formed until the
course of his war leads him to attack the territory in question.
In all cases then in which conquest has unquestionably not been
consolidated, and in which the territory of a state is therefore only
occupied, the state recovers its existence and all the rights attendant
on it as of course so soon as it is relieved from the presence of the
invader. Where, on the other hand, there is reasonable doubt as to
whether a state is occupied or conquered, the third state must be
allowed to determine the point for itself, and to act accordingly.
Hall, pp. 509-512.
Conditions on which vessels are restored.
The circumstances that commercial vessels and their cargoes belong
to private owners and that they are generally of more or less con-
siderable value, coupled with the fact that recaptors are generally
fellow-subjects of the original owners of recaptured property, has
led to the adoption of certain usages with respect to maritime recap-
ture by which the application of the right of postliminium is some-
what blurred. On the one hand, it has been thought well to reward
recaptors by paying them salvage in all cases, so that property never
returns unconditionally to the owner; on the other, property is as a
rule returned to him upon payment of salvage, notwithstanding that
the enemy may have evidenced his capture by taking the captured
ship into a safe place, or even by formal condemnation in his courts.
656
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In 1632 the Dutch government, in the interests of commerce, issued
a placard directing restitution to the owners of vessels recaptured
before being taken into an enemy's port, and by a decree of 1666 they
regarded property in them as unchanged until after sale and a fresh
voyage to a neutral port. In 1649 England ordered restitution of
all British vessels to the owners on payment of salvage irrespectively
of time or of the manner in which they had been dealt with by the
enemy; and the practice has been continued by successive Prize Acts
to the present time, an exception only being made in the case of ships
which before recapture have been commissioned by the enemy as ves-
sels of war. Gradually a like mode of dealing with recaptured ships
has been adopted by other nations, and the municipal laws of the
United States, Portugal, Denmark, Sweden, Holland, France and
Spain now direct their restitution. The cases in which restitution is
made, and the conditions of restitution, are not however altogether
similar in these various countries. The United States restores only
when the recapture has been effected before condemnation in a prize
court; France restores vessels retaken by a public ship of war after
twenty-four hours' possession by an enemy, but leaves them as prizes
in the hands of a privateer; Spain gives greater indulgence to neu-
trals than to her own subjects and returns recaptured vessels to the
former, unless they are laden with enemy's property; Portugal, Den-
mark, Sweden, and Holland follow the English practice of making
restitution in all cases. Payment of salvage is always required, but
the amount varies in different countries. In France one tenth of the
value is exacted, unless recapture has taken place before the expira-
tion of twenty-four hours, when one thirtieth only is demanded; in
England the amount given is one eighth, except in cases of special
difficulty and danger; in Spain the rate is one eighth if the recapture
has been effected by a public ship of war, and one sixth if a privateer
is the recaptor; in Portugal the corresponding rates are one-eighth
and one fifth respectively; in Denmark one third and in Sweden one
half is demanded; the normal rate in the United States is one eighth
of the value, but other rates are levied in special cases. In the
majority of instances the above regulations have been made for
municipal purposes, but it is usual to extend the same treatment to
allies and friends as is applied by the recapturing state to is own
subjects, provided the allied or friendly government acts upon the
principle of reciprocity; if it gives effect to a less liberal rule, its
own practice is followed.
Hall, pp. 512-514,
The term “postliminium” is originally one of Roman Law de-
rived from post and limen (i. e. boundary). According to Roman
Law the relations of Rome with a foreign State depended upon the
POSTLIMINY.
657
fact whether or not a treaty of friendship existed. If such a treaty
was not in existence, Romans entering the foreign State concerned
could be enslaved, and Roman goods taken there could be appro-
priated. Now jus postliminii denoted the rule, firstly, that such an
enslaved Roman, should he ever return into the territory of the Roman
Empire, became ipso facto a Roman citizen again with all the rights
he possessed previous to his capture, and, secondly, that Roman
property, appropriated after entry into the territory of a foreign
State, shculd at once upon being taken back into the territory of the
Roman Empire ipso facto revert to its former Roman owner. Mod-
ern International and Municipal Law have adopted the term for the
purpose of indicating the fact that territory, individuals, and prop-
erty, after having come in time of war under the sway of the enemy,
return either during the war or with the end of the war under the
sway of their original Sovereign. This can occur in different ways.
An occupied territory can voluntarily be evacuated by the enemy and
then at once be reoccupied by the owner. Or it can be reconquered
by the legitimate Sovereign. Or it can be reconquered by a third
party and restored to its legitimate owner. Conquered territory
can also be freed through a successful levy en masse. Property
seized by the enemy can be retaken, but it can also be abandoned by
the enemy and subsequently revert to the belligerent from whom it
was taken. And, further, conquered territory can in consequence of
a treaty of peace be restored to its legitimate Sovereign. In all cases
concerned, the question has to be answered what legal effects the
postliminium has in regard to the territory, the individuals thereon,
or the property concerned.
Most writers confound the effects of postliminium according to
Municipal Law with those according to International Law. For in-
stance; whether a private ship which is recaptured reverts ipso facto
to its former owner; whether the former laws of a reconquered State
revive ipso facto by the reconquest; whether sentences passed on
criminals during the time of an occupation by the enemy should be
annulled—these and many similar questions treated in books on In-
ternational Law have nothing at all to do with International Law,
but have to be answered exclusively by the Municipal Law of the
respective States. International Law can deal only with such effects
of postliminium as are international. These international effects of
postliminium may be grouped under the following heads: revival of
the former condition of things, validity of legitimate acts, invalidity
of illegitimate acts.
Oppenheim, vol. II, pp. 339-341.
ܙ
658
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Recaptured vessels.
When property captured by the enemy is recaptured at sea or in
harbor, it is generally restored to the original owners by what is
called, on the analogy of those rules of Roman Law which gave back
to persons and things their original position on their rescue from the
power of the enemy, jus postliminii, or postliminy. During the form-
ative period of modern International Law there was some doubt as
to the application of this principle. The Consolato del Mare is the
only medieval maritime code that mentions restoration after recap-
ture, and its references to the subject are obscurely worded. Grotius
hardly ventures to decide whether ships can claim the benefit of post-
liminy. The first clear and undoubted instance of its extension to
them as a matter of state policy occurred in 1584, when the French
Government directed that vessels recaptured within twenty-four
hours of their capture by the enemy should be restored to their origi-
nal owners. The British in 1649 adopted a rule practically identical
with their present usage, and the Dutch in 1666 ordered restitution if
the recapture was effected before the vessel had been sold by the cap-
tors and sent on a fresh royage. Other states soon followed this
example, and the practice of restoration became general. There is,
however, one exception to its generality. If the recaptured vessel is
duly set forth as a ship-of-war by the enemy's authorities, while they
have it under their control, it is not given back to the original owners,
but becomes the prize of the recaptors. No uniform rule exists as to
neutral vessels captured by one belligerent and recaptured by the
other. The prize courts of the recaptors would, of course, apply their
own law, but if an exorbitant salvage were given, and still more if
such vessels were condemned as good prize, the government of the
neutral would make its voice heard in emphatic remonstrance, and
might resort to measures of retaliation. Generally an attempt is
made to do substantial justice. Great Britain restores tothe neutral
owners without salvage if the original capture was effected under
such circumstances that it may be presumed no prize court of her
enemy would have decreed condemnation, but if confiscation was
practically certain, her courts will grant a reasonable salvage. Allies
in a war apply to each other the law of the claimant's country at the
time of the recapture, and if one of them resorts to a less liberal rule,
the others treat his subjects as he treats theirs.
Lawrence, pp. 465, 466; the War Onskan and the Carlotta (C. Robinson,
Admiralty Reports, vol. II, p. 299, and vol. V, p. 54.
This case [that of the Elector of Hesse-Cassel] serves at once to
emphasize that distinction between a temporary and a completed
conquest, which has already been discussed; and also to illustrate
the application in international law of the doctrine of postliminium.
This, for our present purpose, we may take to be a legal inference
by which territory taken by the enemy is presumed to be restored-
POSTLIMINY.
659
together with all rights appurtenant thereto_to its original own-
ership if retaken before a complete title has been acquired by the
conqueror. In the judgment finally given it was held in effect that
having regard to the cessation of resistance, and more especially to
the recognition of the conqueror's government by treaty and by
foreign Powers, the conquest by Napoleon must be deemed to have
been definitive and his title complete; and that in view of this the
jus postliminii, with its consequent right to restitutio in integrum,
did not apply on the Elector's subsequent restoration. Looking to
the condition of affairs in Europe at the time, it may perhaps be
doubted whether Napoleon's conquest of Hesse-Cassel could strictly
be regarded as complete for some considerable time after the original
subjugation; for the reason at once that the resistance to Napoleon
was continued by Great Britain, and that the Powers whose recog-
nition was relied on in the judgment were not free agents. Never-
theless, by 1813 the original title may fairly be regarded as having
been perfected by lapse of time and acquiescence; with the result that
what had previously been done, even though prematurely under a
claim of conquest, became validated. And in view of this, the de-
cision arrived at was probably justified in its result, even though
not by some of the reasons on which it professes to rest.
It will be noticed that the property appropriated by the Bonapartes
was the private property of the Elector. This is explained by tbe
fact that at the time in question the distinction between the Sov-
ereign in his personal and political capacity was not so clearly drawn
as now; with the result that property inhering in the Sovereign was
treated for the most part as the property of the State. At the present
time property belonging to a Sovereign in his personal capacity
would be treated as exempt from confiscation ;, although if a displaced
Sovereign were to continue in active hostility after the conquest had
been completed, it would of course be open to the succeeding Govern-
ment to confiscate it for treason, if this was warranted by the do-
mestic law.
Cobbett, pt. II, pp. 252, 253.
General Notes.-Postiliminium in International Law-The jus
postlimini was a doctrine of Roman law under which persons, and,
in some circumstances, things, captured by an enemy were, on re-
turning to the territory to which they had previously belonged,
deemed to revert to their original status or ownership, on the fiction
of no capture having occurred. This doctrine was subsequently im-
ported into international law by the text writers; becoming, in its
new application, a legal inference by which persons, property, and,
more especially, territory, captured by an enemy, were presumed
to revert to their former condition on the withdrawal of the enemy's
control. The doctrine, although it still retains some of its earlier
1
660
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
applications, has now greatly diminished in importance; but it is
nevertheless noteworthy as having provided a mode of thought by
which some of the earlier rules of the jus belli were gradually mod-
ified in their effects and ultimately replaced by rules more suitable
to modern conditions. Owing, indeed, to the early adoption and
somewhat indiscriminating application of the Roman law of occu-
patio, it was a fundamental rule of the earlier jus belli that all objects
taken in war became the property of the captor as soon as he had
acquired a firm possession of them; this being a rule which applied
equally to persons, property, and territory. As regards persons
who under the Roman Law had been the chief object of the jus
postliminii—the need for having recourse to that doctrine was early
dispensed with by the substitution of the practice of detention or
ransom for slavery; whilst the recovery of personal freedom that now
ensues on escape to neutral territory is more correctly based on the
rights of neutral sovereignty. But even as regards property and
territory the consequences of the earlier rule of capture proved
highly inconvenient, as vesting absolutely in the captor a title to
things that still remained subject to the chances of war. In such
cases the effect of the doctrine of postliminium was, shortly, to con-
vert the captor's title from an absolute into a provisional one, and
thus to impose certain necessary restrictions on the captor's action.
(i) Its Operation on Property.-(1) As regards movable prop-
erty taken on land, although some writers treat this as exempt from
the jus postliminiž by reason of the difficulty of identification, it
appears to have been commonly held that such property, if it could
be identified, reverted to its former owner if recaptured speedily, or,
as was usually laid down, within twenty-four hours. Under the
present system, however, such property is, as we have seen, exempt
from seizure, unless it has a military character or is required for
military needs or is the property of the enemy State. (2) As re-
gards property taken at sea, this, although formerly subject to jus
postliminii in the event of recapture, is now governed for the most
part by the municipal law of salvage, which has no present connec-
tion with that doctrine. (3) As regards immovable property, this,
whether belonging to the State or to private persons, was, if seized
by a belligerent in occupation, formerly subject to the jus postliminii,
and reverted to its original ownership on his expulsion or withdrawal
before his title had been perfected by conquest. So, on the termina-
tion of the Franco-German war in 1871—when certain persons, who
had entered into contracts with the German Government for felling
a stipulated quantity of timber in the State forests of certain districts
in France then in German occupation, and who had paid for this
right in advance, claimed that, inasmuch as the German Government
was within its right in letting these contracts, they ought to be al-
POSTLIMINY.
661
lowed to complete them notwithstanding the termination of the
German occupation-the claim was rejected by the French Govern-
ment on the ground that when the German occupation came to an
end, the rights of the former owner reverted, with the result that all
rights derived from or through the occupant were put an end to.
And this view appears to have been accepted even by the German
Government as a correct exposition of the law. The jus postliminii
may still, perhaps, be said to apply where property belonging to in-
dividuals is seized or occupied by an enemy; although the need of it
is now not very apparent, as the only purposes for which it can be
taken are in themselves provisional and temporary. But in the case of
immovable property belonging to the State the jus postliminië has
now been replaced by positive regulation, under which the rights of
the belligerent occupant are expressly limited to those of a usu-
fructuary.
(ii) Its Operation on Territory and Sovereignty. (1) After Oc-
cupation.--According to the earlier view, the seizure and occupa-
tion by one belligerent of territory belonging to the other was
deemed to work a complete-or, at a later time, a partial-substitu-
tion of sovereignty. But here, again, the anomaly of attributing
sovereignty and title to a possession manifestly contingent on the
hazards of war was relieved by the doctrine of postliminium;
which, by predicating a restitution of the original sovereignty and
title in the event of the withdrawal or expulsion of the occupant,
the latter's title merely provisional and defeasible. This view,
whilst consistent with the exercise of all necessary authority over
occupied territory, yet excluded any attempt at alienation or per-
manent change of system until the occupation had been converted
into conquest. And this, in its turn, appears to have paved the way
for the modern rule under which military occupation is deemed to
confer only a possessory or provisional interest; the rights and duties
of the occupant meanwhile resting on the broad ground of military
necessity. But, even on this view, the results of a withdrawal of
control are still those derived from the doctrine of postliminium. So,
when the occupation comes to an end, the authority of the legitimate
government will be restored; the operation of the territorial law and
the jurisdiction of the Courts, in so far as previously suspended, wili
revive; whilst private rights and relations, in so far as they were
previously affected, will be renewed. Acts done by the occupant in
excess of his rights, such as changes in the political system or pre-
tended alienations of property not subject to appropriation, will be
wholly annulled; but acts done by him within his rights under the
jus belli, such as the levy of contributions and requisitions and the
alienation of property subject to appropriation, will hold good in
so far as they have taken effect; whilst acts done in the ordinary
662
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
course of civil or judicial administration, such as the collection of
taxes or the infliction of punishment for civil offences, will be bind-
ing on the restored Government, unless revoked in due course of law.
(2) After temporary or partial Conquest.-It may happen, how-
ever, that a belligerent who intends a conquest and purports to es-
tablish his sovereignty over the territory appropriated, is, after an
interval, displaced by the former Sovereign. Strictly, in such a case
the operation of the jus postliminii will depend on whether there was
or not, according to the tests previously indicated, a completed con-
quest. If there was then, on the subsequent displacement of the
conqueror, the jus postliminii will not apply; the rights of the
parties, both on conquest and reconquest, being strictly determinable
made the latter's title merely provisional and defeasible. This view,
by the rules of succession. But if there was not a completed con-
quest, then the jus postliminii with its attendant consequences
would in strictness apply. Nevertheless, even in this case—and
especially if there was any apparent basis for the claim of sover-
eignty put forward by the intermediate government— the preferable
view would seem to be that all rights acquired under its dispositions
and in good faith ought to be respected; for the reason that in such
circumstances private persons are often not competent to judge of
the true character of political changes.
Cobbett, pt. II, pp. 252-256.
Therefore, in a war between the United States and a belligerent
which admits of slavery, if a person held in bondage by that belliger-
ent be captured by or come as a fugitive under the protection of the
military forces of the United States, such person is immediately
entitled to the rights and privileges of a freeman. To return such
person into slavery would amount to enslaving a free person, and
neither the United States nor any officer under their authority car
enslave any human being. Moreover, a person so made free by the
law of war is under the shield of the law of nations, and the former
owner or State can have, by the law of postliminy, no belligerent lien
or claim of service.
Lieber, par. 43.
The Santa Cruz, 1 C. Rob.50, pp. 60-62.—The court said: “If I am
asked, under the known diversity of practice on this subject, what is
the proper rule for a State to apply to the recaptured property of its
allies, I should answer, that the liberal and rational proceeding would
be, to apply in the first instance the rule of that country to which the
recaptured property belongs. I admit the practice of nations is
not so; but I think such a rule would be both liberal and just; to the
recaptured, it presents his own consent, bound up in the legislative
wisdom of his own country; to the recaptor, it cannot be considered
POSTLIMINY.
663
»
66
as injurious. Where the rule of the recaptured would condemn,
whilst the rule of the recaptor prevailing amongst his own country-
men, would restore, it brings an obvious advantage; and even in the
case of immediate restitution, under the rules of the recaptured, the
recapturing country would rest secure in the reliance of receiving
reciprocal justice in its turn.
So much it might be necessary to explain myself on the mere
question of propriety; but it is much more material to consider what
is the actual rule of the maritime law of England on this subject. I
understand it to be clearly this: that the maritime law of England,
having adopted a most liberal rule of restitution on salvage, with re-
spect to the recaptured property of its own subjects, gives the benefit
of that rule to its allies, till it appears that they act towards British
property on a less liberal principle. In such a case it adopts their
rule, and treats them according to their own measure of justice. This
I consider to be the true statement of the law of England on this
subject. It was clearly so recognized in the case of the San Iago;
a case which was not, as it has been insinuated, decided on special
circumstances, nor on novel principles, but on principles of estab-
lished use and authority in the jurisprudence of this country. In the
discussion of that case, much attention was paid to an opinion found
amongst the manuscript collections of a very experienced practitioner
in this profession (Sir E. Simson), which records the practice and
the rule as it was understood to prevail in his time. "The 'rule is,
that England restores, on salvage, to its allies; but if instances can
be given of British property retaken by them and condemned as
prize, the Court of Admiralty will determiine their cases according
to their own rule.'
Nostra Signora del Rosario, 3 C. Rob. 10, 11.—This was a case
of a British prize ship which had been taken by the Spaniards, and
sent out as a merchant ship, with a letter of marque.
“On the ship. The King's Advocate submitted that, although the
vessel appeared to have been a British prize ship, there were two
grounds on which the captors were entitled to have her condemned
to them. First, that she was fitted out for war; and secondly, that
the condemnation to the former captors at Gibraltar must be taken
to have divested the original British proprietors of their interest:
“Court. The first ground is fully sufficient. Was there a commis-
sion of war?
"King's Advocate. Yes. The master says to the second interroga-
tory that he had a commission from the King of Spain, but that he
had orders from his owners to interrupt no vessel, but to proceed
direct to Lima; on the thirty-first interrogatory it appears that he
had twelve guns on board.
“Ship and cargo condemned to the captors."
TERMINATION OF WAR.
How war is terminated.
War is terminated by the conclusion of a treaty of peace, by simple
cessation of hostilities, or by the conquest of one, or of part of one,
of the belligerent states by the other.
Hall, p. 579.
Cessation of hostilities.
The termination of war by simple cessation of hostilities is ex-
tremely rare. Possibly the commonly cited case of the war between
Sweden and Poland, which ceased in this manner in 1716, is the
only unequivocal instance; though it is likely that if anything had
occurred to compel the setting up of distinct relations of some kind
between Spain and her revolted colonies in America during the long
period which elapsed between the establishment of their indepen-
dence and their recognition of the mother country, it would have
been found that the existence of peace was tacitly assumed. No
active hostilities appear to have been carried on later than the year
1825, and no effort was made to hold neutral states or individuals
to the obligations imposed by a state of war; but it was not till 1840
that intercourse with any of the Central or South American repub-
lics, except Mexico, was authorised by the Spanish government. In
that year commercial vessels of the republic of Ecuador were admit-
ted by royal decree into the ports of the kingdom, and at various sub-
sequent times like decrees were issued in favour of the remaining
states. It was only however in 1844, three years after commercial
relations had been established, that Chile, which was the earliest of
the republics except Mexico to receive recognition, was formally
acknowledged to be independent; and Venezuela, which was the last,
was not recognized till 1850.
The inconvenience of such a state of things is evident. When war
dies insensibly out the date of its termination is necessarily un-
certain. During a considerable time the belligerent states and their
subjects must be doubtful as to the light in which they are regarded
by the other party to the war, and neutral states and individuals
must be equally doubtful as to the extent of their rights and obliga-
tions. Nevertheless a time must come sooner or later at which it is
clear that a state of peace has supervened upon that of war. When
this has arrived, the effects of the informal establishment of peace
are identical with those general effects flowing from the conclusion
664
TERMINATION OF WAR.
665
of a treaty which are necessarily consequent upon the existence of a
state of peace. Beyond this it is difficult to say whether any effects
would be produced. It is at any rate certain that the pretensions
which may have given rise to the war cannot be regarded as aban-
doned, and that the quarrel cannot be assumed to have been defi-
nitively settled. It would always be open to either side to begin a
fresh war upon the same grounds as those which supplied the mo-
tive for hostilities in the first instance,
Hall, 586, 587.
1
How wars may end.
The normal condition between two States being peace, war can
never be more than a temporary condition; whatever may have been
the cause or causes of a war, the latter cannot possibly last for ever.
For either the purpose of war will be realised and one belligerent
will be overpowered by the other, or both will sooner or later be so
exhausted by their exertions that they will desist from the struggle.
Nevertheless wars may last for many years, although of late Eu-
ropean wars have gradually become shorter. The shortening of
European wars in recent times has resulted from several causes, the
more important of which are:conscription, the foundation of the
armies of all the great European Powers, Great Britain excepted;
the net of railways which extends over all European countries, and
which enables a much quicker transport of troops on enemy terri-
tory; and lastly, the vast numbers of the opposing forces which
usually hasten a decisive battle.
Be that as it may, a war may be terminated in three different ways.
Belligerents may, first, abstain from further acts of war and glide
into peaceful relations without expressly making peace through a
special treaty. Or, secondly, belligerents may formally establish
the condition of peace through a special treaty of peace. Or, thirdly,
a belligerent may end the war through subjugation of his ad-
versary.
Oppenheim, vol. 2, p. 322.
Cessation of hostilities.
The regular modes of termination of war are treaties of peace or
subjugation, but cases have occurred in which simple cessation of all
acts of war on the part of both belligerents has actually and in-
formally brought the war to an end. Thus ended in 1716 the war be-
tween Sweden and Poland, in 1720 the war between Spain and France,
in 1801 the war between Russia and Persia, in 1867 the war between
France and Mexico. And it may also be mentioned that, whereas the
war between Prussia and several German States in 1866 came to an
end through subjugation of some States and through treaties of
110678-194 43
666
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
peace with others, Prussia has never concluded a treaty of peace with
the Principality of Lichtenstein, which was also a party to the war.
Although such termination of war through simple cessation of hostil-
ities is for many reasons inconvenient, and is, therefore, as a rule
avoided, it may nevertheless in the future as in the past occasionally
occur.
Since in the case of termination of war through simple cessation
of hostilities no treaty of peace embodies the conditions of peace
between the former belligerents, the question arises whether the
status which existed between the parties before the outbreak of war,
the status quo ante bellum, should be revived, or the status which
exists between the parties at the time when they simply ceased
hostilities, the status quo post bellum (the uti possidetis), can be up-
held. The majority of publicists correctly maintain that the status
which exists at the time of cessation of hostilities becomes silently
recognised through such cessation, and is, therefore, the basis of the
future relations of the parties. This question is of the greatest im-
portance regarding enemy territory militarily occupied by a bellig-
erent at the time hostilities cease. According to the correct opinion
such territory can be annexed by the occupier, the adversary through
the cessation of hostilities having dropped all rights he possessed
over such territory. On the other hand, this termination of war
through cessation of hostilities contains no decision regarding such
claims of the parties as have not been settled by the actual position of
affairs at the termination of hostilities, and it remains for the parties
to settle them by special agreement or to let them stand over.
Oppenheim, vol. 2, p. 323.
Subjugation.
Subjugation must not be confounded with conquest, although there
can be no subjugation without conquest. Conquest is taking posses-
sion of enemy territory by military force. Conquest is completed
as soon as the territory concerned is effectively occupied. Now it is
obvious that conquest of a part of enemy territory has nothing to do
with subjugation, because the enemy may well reconquer it. But
even the conquest of the whole of the enemy territory need not neces-
sarily include subjugation. For, first, in a war between more than
two belligerents the troops of one of them may evacuate their country
and join the army of allies, so that the armed contention is continued,
although the territory of one of the allies is completely conquered.
Again, a belligerent, although he has annihilated the forces, con
quered the whole of the territory of his adversary, and thereby
actually brought the armed contention to an end, may nevertheless
not choose to exterminate the enemy State by annexing the conquered
territory, but may conclude a treaty of peace with the expelled or
TERMINATION OF WAR.
667
imprisoned head of the defeated State, re-establish the latter's Gov-
ernment, and hand the whole or a part of the conquered territory over
to it. Subjugation takes place only when a belligerent, after having
annihilated the forces and conquered the territory of his adversary,
destroys his existence by annexing the conquered territory. Sub-
jugation may, therefore, correctly be defined as extermination in
war of one belligerent by another through annexation of the former's
territory after conquest, the enemy forces having been annihilated.
Although complete conquest, together with annihilation of the
enemy forces, brings the armed contention, and thereby the war,
actually to an end, the formal end of the war is thereby not yet
realised, as everything depends upon the resolution of the victor
regarding the fate of the vanquished State. If he be willing to re-
establish the captive or expelled head of the vanquished State, it is
a treaty of peace concluded with the latter which terminates the war.
But if he desires to acquire the whole of the conquered territory for
himself, he annexes it, and thereby formally ends the war through
subjugation. That the expelled head of the vanquished State protests
and keeps up his claims, matters as little eventually as protests on
the part of neutral States. These protests may be of political im-
portance for the future, legally they are of no importance at all.
History presents numerous instances of subjugation. Although no
longer so frequent as in former times, subjugation is not at all of
rare occurrence. Thus, modern Italy came into existence through
the subjugation by Sardinia in 1859 of the Two Sicilies, the Grand
Dukedom of Tuscany, the Dukedoms of Parma and Modena, and in
1870 the Papal States. Thus, further, Prussia subjugated in 1866 the
Kingdom of Hanover, the Dukedom of Nassau, the Electorate of
Hesse-Cassel, and the Free Town of Frankfort-on-the-Main. And
Great Britain annexed in 1900 the Orange Free State and the South
African Republic.
Oppenheim, vol. 2, pp. 325-327.
Termination of war by treaty.
Although occasionally war ends through simple cessation of hos-
tilities, and although subjugation is not at all rare or irregular, the
most frequent end of war is a treaty of peace. Many publicists cor-
rectly call a treaty of peace the normal mode of terminating war. On
the one hand, simple cessation of hostilities is certainly an irregular
mode. Subjugation, on the other hand, is in most cases either not
within the scope of the intention of the victor or not realisable. And
it is quite reasonable that a treaty of peace should be the normal end
States which are driven from disagreement to war will,
sooner or later, when the fortune of war has given its decision, be
of war.
668
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
convinced that the armed contention ought to be terminated. Thus a
mutual understanding and agreement upon certain terms is the nor-
mal mode of ending the contention. And it is a treaty of peace which
embodies such understanding.
However, as the outbreak of war interrupts all regular non-hostile
intercourse between belligerents, negotiations for peace are often
difficult of initiation. Each party, although willing to negotiate, may
have strong reasons for not opening negotiations. Good offices and
mediation on the part of neutrals, therefore, always are of great
importance, as thereby negotiations are called into existence which
otherwise might have been long delayed. But it must be emphasized
that neither formal nor informal peace negotiations do ipso facto
bring hostilities to a standstill, although a partial or general armis-
tice may be concluded for the purpose of such negotiations. The fact
that peace negotiations are going on directly between belligerents does
not create any non-hostile relations between them apart from those
negotiations themselves. Such negotiations can take place by the
exchange of letters between the belligerent Governments, or through
special negotiators who may meet on neutral territory or on the ter-
ritory of one of the belligerents. In case they meet on belligerent
territory, the enemy negotiators are inviolable and must be treated on
the same footing as bearers of flags of truce, if not as diplomatic en-
voys. For it can happen that a belligerent receives an enemy diplo-
matic envoy for the purpose of peace negotiations. Be that as it may,
negotiations, wherever taking place and by whomsoever conducted,
may always be broken off before an agreement is arrived at.
Although ready to terminate the war through a treaty of peace,
belligerents are frequently not able to settle all the terms of peace at
In such cases hostilities are usually brought to an end through
so-called preliminaries of peace, the definite treaty, which has to take
the place of the preliminaries, being concluded later on. Such pre-
liminaries are a treaty in themselves, embodying an agreement of the
parties regarding such terms of peace as are essential. Preliminaries
are as binding as any other treaty, and therefore they need ratification.
Very often, but not necessarily, the definitive treaty of peace is
concluded at a place other than that at which the preliminaries were
settled. Thus, the war between Austria, France, and Sardinia was
ended by the preliminaries of Villafranca of July 11, 1859, yet the
definitive treaty of peace was concluded at Zurich on November 10,
1859. The war between Austria and Prussia was ended by the Pre-
liminaries of Nickolsburg of July 26, 1866, yet the definitive treaty of
peace was concluded at Prague on August 23. In the Franco-German
War the Preliminaries of Versailles of February 26, 1871, were the
precursor of the definitive treaty of peace concluded at Frankfort on
May 10, 1871.
once.
TERMINATION OF WAR.
669
The purpose for which preliminaries of peace are agreed upon
makes it obvious that such essential terms of peace as are stipulated
by the Preliminaries are the basis of the definitive treaty of peace.
It may happen, however, that neutral States protest for the purpose
of preventing this. Thus, when the war between Russia and Turkey
had been ended through the Preliminaries of San Stefano of March
3, 1878, Great Britain protested, a Congress met at Berlin, and Russia
had to be content with less favourable terms of peace than those stipu-
lated at San Stefano.
Oppenheim, vol. 2, pp. 327–330.
How wars end.
War between civilized states is almost invariably ended by a treaty
of peace. It has sometimes happened that the belligerents have ex-
hausted themselves and tacitly ceased from further operations, but
there are no recent instances of such a termination to hostilities in a
struggle of any consequence, except the withdrawal of the French
troops from Mexico in 1867 at the instigation of the United States.
Wars may come to an end through the destruction of one of the com-
munities engaged in them, as Poland was destroyed by the Third Par-
tition, or as the Southern Confederacy fell after four years of strenu-
ous conflict. In such cases no treaty is possible because there is no
body politic left for the victor to treat with. Great Britain, however,
strained a point in 1902 because of the special circumstances of the
Boer War, and consented to negotiate with the leaders of the Boer
commandoes still in the field against her, though the governments in
whose name they waged war had ceased to govern, and no longer
exercised any powers of sovereignty over definite territorial areas.
But when each of the belligerents preserves its political identity after
the war, a treaty is drawn up embodying the conditions of peace.
Sometimes two agreements prove necessary---a treaty embodying what
are called the preliminaries, and a subsequent instrument called the
definitive treaty of peace. Warlike acts generally cease on the signa-
ture of the preliminary treaty, the provisions of which are adopted
and extended in the definitive treaty which takes its place. As a rule
this document settles all the matters in dispute. But on rare occa-
sions the difficulties of a settlement prove insuperable, and the parties
content themselves with providing for the restoration of peace and
amity. This was the case with Great Britain and the United States
in 1814, when the Treaty of Ghent terminated the war between them
without solving any of the difficult questions which had originally
caused it. Such a curious combination of a strong desire to terminate
the struggle with an equally strong inability to agree upon a settle-
ment of the points at issue is seldom found. Generally the causes of
670
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the quarrel are dealt with in the instrument which restores peace,
and it contains in addition various stipulations concerning the new
order of things which is to follow the termination of hostilities. Pri-
vate rights are safeguarded, provision is made for the resumption of
commercial intercourse, and legal matters of an international char-
acter receive due attention.
Lawreuce, pp. 568, 569.
Consequences of end of war.
The restoration of a state of peace carries with it certain conse-
quences defined by International Law, and not dependent for their
existence upon treaty stipulations, though they may be modified or
set aside thereby. The moment a treaty of peace is signed, belligerent
rights cease. There must be no more fighting. Requisitions and
contributions can be levied no longer by an occupying army, and
arrears of them remaining unpaid cannot be demanded. The right
to detain prisoners of war as such ceases, though convenience dictates
that they shall remain under supervision till proper arrangements
can be made for their return home, which should take place as soon as
possible. When the area of warfare is very large, and portions of
it are too remote to be reached by quick modes of communication, it
is usual to fix in the treaty a future date for the cessation of hos-
tilities in those distant parts. But if official news of the restoration
of peace reaches them before the time fixed, it seems to be settled that
no further acts of war may be committed. The notification must,
however, come from the government of a belligerent in order to be
binding upon its commanders. They are under no obligation to take
notice of information derived from any other source. This was
clearly laid down by the French Council of Prizes in the case of the
Swineherd, a British ship captured in the Indian Ocean in 1801,
within the five months fixed by the Treaty of Amiens for the termi-
nation of hostilities in those regions, but after the French privateer
which made the capture had received news of the peace. The in-
formation was, however, English and Portuguese in its sources. No
notification of an official character had been received from France,
and the capture was therefore adjudged to be legal. Captures made
in ignorance after the conclusion of peace, or after the time fixed
in the treaty for the termination of hostilities, must be restored, and
the effects of all acts of war performed under similar circumstances
must be undone as far as possible.
At the conclusion of peace those private rights which have been
suspended during the war are revived. Thus in countries which give
an enemy subject no right of admission to their courts, debts due
from subjects of one of the powers lately belligerent to subjects of
TERMINATION OF WAR.
671
the other can again be sued for, and contracts made before the war
between private individuals on opposite sides in the struggle can be
enforced at law. But specific performance cannot be demanded if
any act done in furtherance of warlike operations, or as an incident
of them, has rendered it impossible. A man, for instance, cannot.
be compelled to fulfill an agreement to sell a particular house or a
particular herd of cattle, if the house has been battered to pieces in
a siege or the cattle requisitioned and eaten by the enemy. When a
period is put to legal obligations, the time does not run during the
continuance of hostilities. Let us take as an example the payment
of a debt, the recovery of which is barred after seven years by a
statute of limitations. It could be enforced at the end of a war,
provided that less than seven years had elapsed between the time
when the debt was contracted and the outbreak of hostilities, and it
could also be enforced at any subsequent period, provided that the
time between the signature of the peace and the commencement of
the action, added to the time between the incurring of the debt and
the war, did not exceed seven years. This is the view taken by the
courts of the United States, but it seems that there are English au-
thorities to the contrary. In the absence of international agreement
each state can adopt the view it prefers.
As between the belligerent powers themselves, it is held that the
conclusion of peace legalizes the state of possession existing at the
moment, unless special stipulations to the contrary are contained in
the treaty. This is called the principle of uti possidetis, and it is
of wide and far-reaching application. Cities, districts, and prov-
inces held in belligerent occupation by an enemy, fall to him by the
title of conquest, when it is not expressly stated that they are to be
evacuated. Captures from an enemy made at sea but not yet con-
demned by a Prize Court become the lawful possessions of the cap-
tor, and seizures on land of such things as a belligerent is allowed by
the laws of war to appropriate are his by good title. It is very
rarely desired that all these consequences should follow the conclu-
sion of peace. The victor does not wish to acquire in perpetuity
every post he holds when hostilities cease, nor does the vanquished
intend to give up whatever territory may be at the moment in the
hands of his adversary. Accordingly when one side has overrun
large districts and captured many places, the treaty of peace almost
invariably contains elaborate stipulations with regard to them.
Their future destination is settled by express agreement, and de-
tailed provisions are made for the regulation of proprietary and
personal rights and obligations. Arrangements that seem at first
sight to be pedantic in their minuteness are often necessary to carry
out the intentions of the parties in the face of the rule that, when
0
672
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
there are no express stipulations to the contrary, the principle of
uti possedetis prevails.
Lawrence, pp. 569–572.
The Termination of War.-It is the province of the Government,
and not of the Courts, to determine when war is at an end (Conley
1. Calhoun ('ounty, 2 W. Va. 416, an American case). The same
view would obtain here (Janson v. Driefontein Consolidated Mines,
Limited, 1902, A. C. 484; see judgment of Lord Macnaghten at p.
497).
Trotter, p. 76.
The termination of war.
In General-1. By Conquest. When one of the belligerents for a
considerable time submits to the other it is usually regarded as a
conquest and the war status is considered as at an end.1
2. By Cessation of Hostilities. War may come to an end by the
simple cessation of hostilities.2
3. By Treaty. War is usually terminated by a treaty of peace,
which, in recent years, has frequently been preceded by a preliminary
agreement or protocol.
3
12 Halleck Int. L. (4th ed.) 491; Lawrence Pub. Int. L. (7th ed.) 53; Freeborn v.
The Protector, 12 Wall. (U. S.) 700, 20 L. ed. 47; Carver v. U. S., 16 Ct. Ci. 361, 383
[affirmed in 111 U. S. 609, 4 S. Ct. 561, 28 L. ed. 540].
In Alabama.---As between citizens of Alabama in their relations with each other, peace
must be held to have been declared not later than Dec. 20, 1865, if not before that time;
that being the date when provisional Governor Parsons surrendered his authority to the
governor elected under the constitution of 1865; although, in other cases, peace may not
be regarded as reëstablished until after the proclamation of the president declaring its
restoration. Nelson V. Manning, 53 Ala, 549,
It is the province of the political and not the judicial department of the federal gov-
ernment to determine when war is at an end. Conly 1. Calhoun County, 2 W. Va. 416.
2 Freeborn v. The Protector, 12 Wall. (U. S.) 700, 20 L, ed. 463. The following wars
came to an end by the cessation of hostilities: Sweden-Poland, 1716; France-Spain, 1720 ;
Texas-Mexico, 1836; Spanish wars with American colonies in early nineteenth century.
3 Foushee v. Blackwell, 1 Rob. (Va.) 488; Nephews v. U. S., 43 Ct. Ci, 430, holding that
a state of war with Spain did not cease until the ratification of the treaty in April, 1899.
30 U. S. St. at L, 1754.
"A treaty of peace usually covers, (1) the cessation of hostilities, (2) the subjects
which have led to war,' (3) agreements for immunity for acts done during the war without
suficient authority or in excess of authority. Such acts might otherwise become bases foi
civil or criminal process. Acts not consequent upon the existence of war, but such as are
actionable under the ordinary laws of the state, as for violation of private contract,
ordinary debts, etc., are not included unless there is a direct stipulation to that effect.
This immunity is commonly called amnesty. (4) Provision for the release of the prisoners
of war is often included. (5) Special provision may be made for cession of territory,
indemnity, boundaries, or other contingent points." Wilson & Tucker Int. L. 15th
ed. 283.
Return of Spanish soldiers and other persons by the United States to Spain was au-
thorized and required by the Treaty of Paris of Dec. 10, 1898, 30 U, S. St, at L. 1754,
Ceballos v. U. S., 42 Ct. CI. 318 (reversed on other grounds in 214 U: S. 47, 29 S. Ct.
583, 53 L. ed. 904].
All claims of indemnity, national and individual, were mutually relinquished by the
treaty between the United States and Spain, of Dec, 10, 1898, 30 U. S. St. at L. $1754.
Nephews 1. U. S., 43 Ct. Cl. 430.
4 U. S. For, Rel. (1898) 828 ; Takahashi, Russo-Japanese War 219; Hall Int. L. (5th
ed.) 558.
TERMINATION OF WAR.
673
In the absence of treaty provision, the doctrine of uti possidetis
usually prevails. 1
G. G. Wilson in 40 Cyc. pp. 393-394.
While you do not so state, I assume that your doubt arises
as to whether there is a status of war between the United States and
Spain at the present time, the protocol providing for the cessation
of hostilities and the appointment of commissioners to negotiate
peace having been signed on the 12th of August instant.
Notwithstanding the signing of the protocol and the suspension
of hostilities, a state of war between this country and Spain still
exists. Peace has not been declared and can not be declared except
in pursuance of the negotiations between the peace commissioners
authorized by the protocol. In my judgment, therefore, so far as
this question is concerned, the act is still operative.
Opinions of United States Attorneys-General, vol. XXII, p. 191.
By article 6 of said protocol it is agreed that upon the conclusion
and signature of this protocol hostilities between the two countries
shall be suspended, and notice to that effect shall be given as soon as
possible by each Government to the commanders of its military and
naval forces.
In my judgment the suspension of hostilities provided for by the
protocol is not tantamount to a termination of the war, but creates
only what you happily describe in your letter as an interval in war
and supposes a return to it. The Volunteer Army of the United
States has not been disbanded, but is still armed and in the field,
ready for the resumption of hostilities provided the negotiations for
a final and definite peace, which are now being conducted, shall
eventually fail. The United States is in possession of various points
of Spanish territory, holding and governing it by virtue of military
law. No treaty of peace has been signed, and in the eye of the law
a condition of war still continues, actual hostilities only being
suspended.
Opinions of United States Attorneys-General, vol. XXII, p. 259.
1
1 The Bain v. Speedwell, 2 Dall. (U. S.) 40, 1 L. ed. 280. (holding that a vessel, cap-
tured after the preliminary articles of peace, cannot be condemned); Sanches v. U. S.,
.42 Ct. Cl. 458.
The treaty of 1783 with Great Britain stipulated against further confiscation of the
property of British subjects (Whitaker v. English, 1 Bay (S. C.) 15; Gordon v. Holiday,
10 Fed. Cas. No. 5, 610, 1 Wash. 285 ; Jones 1. Walker, 13 Fed. Cas. No. 7, 507, 2 Paine
888); but did not invalidate confiscations theretofore made (McGregor 1. Comstock, 16
Barð. (N. Y.) 427 [affirmed in 17 N. Y. 162] ; Orser v. Hoag, 3 Hill (N. Y.) 79; Ash v.
Ashton, 3 Watts & S. (Pa.) 510; Dietrick v. Mateer, 10 Serg. & R. (Pa.) 151 ; Com. v.
Bristow, 6 Call (Va.) 60).
Payments of debts due British subjects, made during the Revolutionary war into the
treasury of the state, and pursuant to statute, were ineffectual because of provisions of
the treaty of peace. Clarke v. Harwood, 3 Dall. (U. $.) 342, 1 L. ed. 628; Ware v.
Hylton, 3 Dall. (U. S.) 199, 1 L. ed. 568, Contra, Dulany v. Wells, 3 Harr. & M, 20.
674
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Duty of neutrals in determining whether war has ended.
“The undersigned, Secretary of State of the United States, has the
honor to acknowledge the receipt of a note from Mr. Goñi, minister
plenipotentiary of her Catholic Majesty, written on the 30th of
June last, in which Mr. Goñi directs the attention of the undersigned
to the affair of the monitors Catawba and Oneota. Mr. Goñi men-
tions two circumstances which move him to insist upon the detention
of those monitors, namely: first, that the minister plenipotentiary
of Peru has solicited permission from the United States government
to take possession of the monitors, contending that the existing
situation between Spain and Peru is no longer one of war, which
assertion Mr. Goñi pronounces to be entirely without foundation;
and secondly, that the monitors now in the port of New Orleans are
not apparently sufficiently guarded to prevent them from going to
sea, as the undersigned is aware of no official measures having been
taken to prevent their departure. Mr. Goñi dwells upon the fact
that the United States have tendered their good offices to Spain and
to her antagonists, the Pacific republics, and that while Spain has.
promptly expressed her disposition to accept those good offices with
a view to the establishment of peace, Peru has not accepted them, nor
given any conclusive reply upon the subject. Mr. Goñi argues from
this fact that the government of Peru cannot rightfully claim that
the government of the United States shall, during those overtures,
pronounce the state of war to be closed and the state of peace to
have been reached by the silent consent and concurrence of the
parties.
“Upon the grounds thus mentioned Mr. Goñi feels himself obliged
to insist upon the adoption of peremptory measures to prevent the
departure of the monitors in question. He fortifies his position by
stating from common report that the vessels are not in the hands of
the local authorities, and it is not known what orders have been
issued about them. He begs, therefore, that immediate measures be
taken to detain the monitors Catawba and Oneota.
“The undersigned has the honor, in reply, to inform Mr. Goñi, in
the first place, that the Peruvian government on its part insists that
the situation of war between herself and her allies on the one part,
and Spain on the other, has practically come to an end by the cessa-
tion of all hostilities on either side since the second day of May, 1866.
The undersigned has further the honor to inform Mr. Goñi that
the Peruvian government alleges in support of its position the fact.
that Chili and Spain, Chili being one of the allied belligerents and
Spain the other belligerent, have, in the present year, voluntarily
joined themselves together in peaceful and friendly concern and co-
operation in waiving objections to the clearance from British ports
of ships of war for the respective parties. So far as this department
64
TERMINATION OF WAR.
675
C
is informed, this statement is not controverted by the Spanish gov-
ernment, and Peru insists that the proceeding is equivalent to an
acknowledgment on the part of Spain of the pretensions made by
Peru that the situation of war between the belligerent republics and
Spain has come to an end. Peru agrees in this respect that Spain
cannot claim before the government of Great Britain to be at peace
and at the same time claim before the government of the United
States to be at war with Peru and her allies, the position of the
United States and Great Britain in regard to the belligerents being
identical.
“Mr. Goñi is informed, in the third place, that the Peruvian gor-
ernment distinctly proposes to the government of the United States
that, if it shall consent to the clearance of the Catawba and the
Oneota, the Peruvian government will give adequate security that
those vessels shall not be employed in any hostile proceeding against
Spain or any other nation on their way to the port of Callao, in the
Pacific, but shall keep the peace until the vessels shall have arrived
in the harbor of Callao, there to be used for purposes of domestic
defense and security.
" Mr. Goñi is further informed, in the fourth place, that the House
of Representatives having taken the subject of the sale and proposed
departure of these vessels into consideration with a view to some
possible legislative action thereupon, directions have been given by
the President that those vessels shall not receive clearance or be per-
mitted to depart while the subject is engaging the attention of Con-
gress. The vessels are for this reason detained at present, and will.
be so temporarily detained, whatever appearances or presumptions to
the contrary may anywhere exist.
“In consequence of the proceedings of the House of Representatives
which have been referred to, it seems to the President that the occa-
sion has not yet arrived when it will be necessary for him to decide
the grave question which has been raised before this government be-
tween the ministers of Spain and Peru, namely the question whether
the war which was heretofore waged between those nations has been
practically brought to an end or not. Frankness, however, obliges
the undersigned to say that unless some unforeseen circumstances
shall soon occur, the time for acting upon that question would seem
to be near at hand.
“The undersigned freely admits the difficulties which are likely to
attend the decision of the question. It is certain that a condition of
war can be raised without an authoritative declaration of war, and,
on the other hand, the situation of peace may be restored by the long
suspension of hostilities without a treaty of peace being made. His-
tory is full of such occurrences. What period of suspension of war
+
676
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
is necessary to justify the presumption of the restoration of peace
has never yet been settled, and must in every case be determined with
reference to collateral facts and circumstances.
“ The proceedings of Spain and Chili which have been referred to,
although inconclusive, require an explanation on the part of either
of those powers which shall insist that the condition of war still
exists. Peru, equally with Spain, has as absolute a right to decline
the good offices or mediation of the United States for peace as either
has to accept the same. The refusal of either would be inconclusive
as an evidence of determination to resume or continue the war. It is
the interest of the United States, and of all nations, that the return
of peace, however it may be brought about, shall be accepted when-
ever it has become clearly established. Whenever the United States
shall find itself obliged to decide the question whether the war still
exists between Spain and Peru, or whether that war has come to an
end, it will make that decision only after having carefully examined
all the pertinent facts which shall be within its reach, and after hav-
ing given due consideration to such representations as shall have
been made by the several parties interested."
Secretary of State Seward to Mr. Goñi, minister of Spain, July 9,
1868, Messages and Documents, part 2, 1868–9.
" It is certain that a condition of war can be raised without an
authoritative declaration of war, and, on the other hand, the situa-
tion of peace may be restored by the long suspension of hostilities
without a treaty of peace being made. History is full of such occur-
rences. What period of suspension of war is necessary to justify the
presumption of the restoration of peace has never yet been settled,
and must in every case be determined with reference to collateral
facts and circumstances.
The proceedings of Spain and Chili which have been referred
to, although conclusive, require an explanation on the part of either
of those powers which shall insist that the condition of war still
exists. Peru, equally with Spain, has as absolute a right to decline
the good offices or mediation of the United States for peace as either
has to accept the same. The refusal of either would be inconclusive
as an evidence of determination to resume or continue the war. It is
the interest of the United States, and of all nations, that the
return of peace, however it may be brought about, shall be ac-
cepted whenever it has become clearly established. Whenever the
United States shall find itself obliged to decide the question whether
the war still exists between Spain and Peru, or whether that war
has come to an end, it will make that decision only after having
carefully examined all the pertinent facts which shall be within its
TERMINATION OF WAR.
677
reach, and after having given due consideration to such representa-
tions as shall have been made by the several parties interested.”
Moore's Digest, vol. VII, pp. 336, 337; Mr. Seward, Sec. of State, to Mr.
Goñi, Spanish min., July 22, 1868, Dip. Cor. 1868, II, 32, 34.
“I have yet to learn that a war in which the belligerents, as was
the case with the late. civil war, are persistent and determined, can
be said to have closed until peace is conclusively established, either
by treaty when the war is foreign, or when civil by proclamation
of the termination of hostilities on one side and the acceptance of
such proclamation on the other. The surrender of the main armies
of one of the belligerents does not of itself work such termination;
nor does such surrender, under the law of nations, of itself end the
conqueror's right to seize and sequestrate whatever property he may
find which his antagonist could use for a renewal of hostilities. The
seizure of such property, and eminently so when, as in the present
case, it is notoriously part of the war capital of the defeated govern-
ment, is an act not merely of policy and right, but of mercy, in
pro-
portion to the extent to which the party overthrown is composed of
high-spirited men who are ready to submit only when their military
resources are wholly exhausted, and not until then. This, in the
summer of 1865, was the condition of things in the Southern and
Southwestern States of this nation. The period was one in which
the maintenance of military rule and the taking into the possession
of the United States of all the property capable of use as military
resources of those States was essential to the permanent restoration
of order, peace, and a common municipal law. This was so from the
nature of things, and such was the course of public action. It is in
accordance with this principle that the Supreme Court of the United
States has formally decided that the late civil war terminated in
the particular sections of the United States at the period designated
in the proclamations of the President of the United States. (Brown
v. Hiatts, 15 Wall. 177; Adger v. Alston, ibid. 555; Batesville Insti-
tute v. Kauffman, 18 Wall. 151.) And by the President's proclama-
tion of April 2, 1866, the insurrection which heretofore existed in
the States of Georgia, South Carolina, Virginia, North Carolina,
Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida
is at an end, and is henceforth to be so regarded. Up to and before
that date the insurrection in those States was held to exist. After
that date it was held to be at an end."
Moore's Digest, vol. VII, pp. 337, 338; Mr. Bayard, Sec. of State, to Mr.
Muruaga, Span. Min., Dec. 3, 1886, For. Rel. 1887, 1015, 1019. As to
termination of Indian wars, see Mr. Evarts, Sec. of State, to Sir E.
Thornton, May 27, 1879, For. Rel. 1879, 496. See, also, The Protec-
tor, 12 Wall. 700.
678
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In the case of the schooner John, Upham, American commis-
sioner, Hornby, British commissioner, coinciding with the conclu-
sions (Moore, 3793; Report, United States and Great Britain Claims
Commission of 1853, 432), said that, “ when there is a want of due
diligence in advertising the cessation of hostilities, the injured party
is clearly entitled to indemnificaton; and Vattel says, also,' that those
who shall, through their own fault, remain ignorant of the publica-
tion of the truce, would be bound to repair any damage they may have
caused contrary to its tenor.'" (Vattel, Book III, Chap. XVI).
Ralston, p. 300.
Hijo v. United States, 194 U. S., 315, 1903.—Mr. Justice Harlan
said, “ It is none the less a case sounding in tort because the claim is
in form for the use of the vessel after actual hostilities were suspended
by the protocol of August 12, 1898. A state of war did not in law
cease until the ratification in April, 1899, of the treaty of peace. ‘A
truce or suspension of armies,' says Kent, 'does not terminate the war,
but it is one of the commercia belli which suspends its operations.
At the expiration of the truce, hostilities may recommence without
any fresh declaration of war.' 1 Kent, 159, 161. If the original seiz-
ure made a case sounding in tort, as it undoubtedly did, the transac-
tion was not converted into one of implied contract because of the
retention and use of the vessel pending negotiations for a treaty of
peace.'
TREATIES OF PEACE.
Thirdly. We have to consider the termination of War by the con-
clusion of a formal Treaty of Peace between the Belligerents.
The examination of this part of the subject must embrace the fol-
lowing considerations :-
I. By whom the overtures of Peace may be made.
II. Where, or within the limits of whose territory, the negotiations
may be opened and carried on.
III. How, or according to what forms.
IV. When the Treaty of Peace takes effect, or the date from which
the operation of it becomes binding upon the public relations of States
and the private relations of individuals.
Phillimore, vol. III, pp. 774, 775.
Overtures for peace, by whom made.
First, then, to consider by whom the overtures of peace may be
made.
These overtures may be made by one of the Belligerent States, by a
Neutral State acting as the common friend of both litigants, or, by a
State which is rather an auxiliary than an ally, or which—to speak as
correctly as the nature of the distinction permits—has, as it were,
been the passive ally of one Belligerent, without positively declaring
war against the other Belligerent, without withdrawing its Ambassa-
dor from his Court, and indeed while continuing with this Belligerent,
formally at least, the relations of amity.
This third kind of status is sometimes designated in the books as the
status of an auxiliary, as distinguished from an ally.
A Neutral Power may also act as a mediator, or may merely inter-
pose its good offices. Between the two positions there is a marked dif-
ference, inasmuch as the former implies the consent of both Bellig-
erents; the latter may be without the consent of either, or with the
consent of only one. The good offices of a Neutral State may be
accepted, and its mediation refused. In the war with Sweden in 1742
Russia accepted the good offices and refused the mediation of France.
The mediator must not be confounded with the arbitrator, whose
character and functions have been discussed in an earlier part of this
volume.
Phillimore, vol. III, p. 775.
679
680
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Negotiations for peace, where carried on.
Where, or within the limits of whose territory, may the negotia-
tions be carried on?
This question is often adjusted by reference to considerations of
local convenience.
It ought of course to be the object of all parties to fix upon a spot
which may be of the readiest access to the respective Courts of the
Belligerents. But this consideration is often overborne by animosities
growing out of or connected with the War, which render it desirable
either that some Neutral Territory should be selected, and not unfre-
quently some town of inconsiderable size and character within that
territory. These are all considerations belonging rather to Public
Policy than to Public International Law.
All that the latter seems to require is, that the place of negotiation
shall be clearly and definitively agreed upon before the negotiations
themselves are opened. In the case of arbitration, indeed, the Court
of the arbitrator is, for obvious reasons, the proper place of the tribu-
nal before which States agree to argue their causes.
Phillimore, vol. III, p. 776.
Form of negotiations.
How, or according to what forms, are the negotiations to be carried
on?
There are no necessarily fixed or unalterable rules upon this sub-
ject, apart from those which flow from the respect due to the equality
and dignity of States. If it should appear that any question would
be likely to arise with respect to these forms, they are the subject of
agreement before the substance of the Treaty is entered upon. The
time has gone by when one ambassador gravely and vigilantly ob-.
served, as is said to have been the case at the Treaty of Ryswick, the
number of steps backwards or forwards made by the other ambassa-
dors.
Phillimore, vol. III, p. 776.
Treaties of Peace. The object of war is peace; and it is the duty
of every belligerent power to make war fulfill its end with the
least possible mischief, and to accelerate, by all fair and reasonable
means, a just and honorable peace. The same power which has the
right to declare and carry on war, would seem naturally to be the
proper power to make and conclude a treaty of peace; but the dispo-
sition of this power will depend upon the local constitution of every
nation; and it sometimes happens that the power of making peace'is.
committed to a body of men who have not the power to make war.
In Sweden, after the death of Charles XII., the king could declare
war without the consent of the national diet, but he made peace in
TREATIES OF PEACE.
681
conjunction with the senate. So, by the Constitution of the United
States, the President, by and with the advice and consent of two-thirds
of the Senate, may make peace, but it is reserved to Congress to de-
clare war. This provision in our Constitution is well adapted (as will
be shown more fully hereafter) to unite, in the negotiation and conclu-
sion of treaties, the advantage of talents, experience, stability, and
a comprehensive knowledge of national interest, with the requisite
secrecy and despatch.
Treaties of peace, when made by the competent power, are obliga-
tory upon the whole nation. If the treaty requires the payment of
money to carry it into effect, and the money cannot be raised but by
an act of the legislature, the treaty is morally obligatory upon
the legislature to pass the law, and to refuse it would be a breach of
public faith. The department of the government that is intrusted
by the Constitution with the treaty-making power is competent to
bind the national faith in its discretion; for the power to make
treaties of peace must be coextensive with all the exigencies of the
nation, and necessarily involves in it that portion of the national sov-
ereignty which has the exclusive direction of diplomatic negotiations
and contracts with foreign powers. All treaties made by that power
become of absolute efficacy, because they are the supreme law of the
land.
There can be no doubt that the power competent to bind the nation
by treaty may alienate the public domain and property by treaty.
If a nation has conferred upon its executive department, without
reserve, the right of treating and contracting with other states, it is
considered as having invested it with all the power necessary to make
a valid contract. That department is the organ of the nation, and
the alienations by it are valid, because they are done by the reputed
will of the nation. The fundamental laws of a state may withhold
from the executive department the power of transferring what be-
longs to the state; but if there be no express provision of that kind,
the inference is, that it has confided to the department charged with
the power of making treaties a discretion commensurate with all the
great interests and wants and necessities of the nations. A power
to make treaties of peace necessarily implies a power to decide the
terms on which they shall be made, and foreign states could not deal
safely with the government upon any other presumption. The power
that is intrusted generally and largely with authority to make valid
treaties of peace can, of course, bind the nation by alienation of part
of its territory; and this is equally the case whether that territory
be already in the occupation of the enemy or remains in the posses-
sion of the nation, and whether the property be public or private.
In the case of the Schooner Peggy, the Supreme Court of the United
110678—19
44
682
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
V
States admitted that individual rights, acquired by war, and vested
rights of the citizens, might be sacrificed by treaty for national pur-
poses. So, in the case of Ware v. Hylton it was said to be a clear
principle of national law that private rights might be sacrificed by
treaty to secure the public safety, though the government would be
bound to make compensation and indemnity to the individuals whose
rights had thus been surrendered. The power to alienate, and the
duty to make compensation, are both laid down by Grotius in equally
explicit terms.
A treaty of peace is valid and binding on the nation, if made with
the present ruling power of the nation, or the government de facto.
Other nations have no right to interfere with the domestic affairs of
any particular nation, or to examine and judge of the title of the
party in possession of the supreme authority. They are to look only
to the fact of possession. And it is an acknowledged rule of inter-
national law, that the principal party in whose name the war is made
cannot justly make peace without including those defensive allies in
the pacification who have afforded assistance, though they may not
have acted as principals; for it would be faithless and cruel for the
principal in the war to leave his weaker ally to the full force of the
enemy's resentment. The ally is, however, to be no further a party
to the stipulations and obligations of the treaty than he has been
willing to consent. All that the principal can require is, that his
ally be considered as restored to a state of peace. Every alliance, in
which all the parties are principals in the war, obliges the allies to
treat in concert, though each one makes a separate treaty of peace
for himself.
The effect of a treaty of peace is to put an end to the war, and to
abolish the subject of it. Peace relates to the war which it termi-
nates. It is an agreement to waive all discussion concerning the re-
spective rights of the parties, and to bury in oblivion all the original
causes of the war. It forbids the revival of the same war, by taking
arms for the cause which at first kindled it, though it is no objec-
tion to any subsequent pretensions to the same thing on other founda-
tions. After peace, the revival of grievances arising before the
war is not encouraged, for treaties of peace are intended to put an
end to such complaints; and if grievances then existing are not
brought forward at the time when peace is concluded, it is to be
presumed that it is not intended to bring them forward at any future
time. Peace leaves the contracting parties without any right of
committing hostility, for the very cause which kindled the war, or
for what has passed in the course of it. It is, therefore, no longer
permitted to take up arms again for the same cause. But this will
not preclude the right to complain and resist, if the same grievances
which kindled the war be renewed and repeated; for that would fur-
TREATIES OF PEACE.
683
nish a new injury and a new cause of war equally just with the
former war. If an abstract right be in question between the parties,
the right, for instance, to impress at sea one's own subjects from the
merchant vessels of the other, and the parties make peace without
taking any notice of the question, it follows, of course, that all past
grievances, damages, and injury, arising under such claim, are
thrown into oblivion, by the amnesty which every treaty implies;
but the claim itself is not thereby settled, either one way or the other.
It remains open for future discussion, because the treaty wanted an
express concession or renunciation of the claim itself.
A treaty of peace leaves everything in the state in which it finds
it, if there be no express stipulation on the subject. If nothing be
said in the treaty of peace about the conquered country or places,
they remain with the possessor, and his title cannot afterwards be
called in question. During war, the conqueror has only a usufructu-
ary right to the territory he has subdued; and the latent right and
title of the former sovereign continues, until a treaty of peace, by
its silence or by its express stipulation, shall have extinguished his
title forever.
Kent, vol. I, pp. 180-184; The Schooner Peggy, 1 Cranch, 103; Ware v.
Hylton, 3 Dallas, 199; Little v. Watson, 32 Maine, 214; Meade v.
U. S. 2 Nott. & H. (Court of Claims) 224; The Eliza Ann, 1 Dod. 249;
The Holly, 1 Dod. 396.
Every treaty of peace, according to Vattel, is nothing more than a
compromise. Were strict and rigid justice to be insisted on, it would
be impossible ever to make a treaty of peace. Not only the character
of the original cause of the war would have to be determined, in order
to settle the question as to which of the belligerents was in the wrong,
but also all of the operations of the war itself, and the expenses in-
curred and damages suffered by each party. This would be impos-
sible; no other expedient, therefore, remains but to compromise all
the claims and grievances on both sides, by a convention as fair and
equitable as circumstances will admit of, all parties agreeing upon
what terms their several pretensions are to be regarded as withdrawn
or extinguished. The general effect of a treaty of peace is to put an
end to the war, and to abolish the subject of it. “It leaves the con-
tracting parties,” says Vattel,“ without any right of committing hos-
tility, either on account of the subject matter which gave rise to the
war, or of anything that was done during its continuance; therefore
they can not take up arms again for the same subject. Accordingly,
in such treaties, the contracting parties reciprocally engage to pre-
serve perpetual peace, which is not to be understood as if they prom-
ised never to make war on each other for any cause whatever. The
peace in question relates to the war which it terminates; and it is in
684
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
reality perpetual, inasmuch as it does not allow them to renew the
same war by taking up arms again for the same subject which had
originally given birth to it.” (Phillimore, On Int. Law, vol. 3, $ 509;
Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 20, $ 19; Vattel, Droit des
Gens, liv. 4, ch. 2, § 19; K'ent, Com. on Am. Law, vol. 1, p. 168; The
Eliza Ann, 1 Dod. Rep., p. 249; The Molly, 1 Dod. Rep., p. 396.)
Halleck, pp. 850, 851.
It is the usual practice to introduce a leading article in a treaty of
peace declaring an amnesty or a perfect oblivion of what is past;
but although the treaty should be silent on this subject, the amnesty
is, by the very nature of peace, necessarily implied in it. A treaty
of peace puts an end to all claims for indemnity for tortious acts
committed during the war under the authority of one government
against the citizens or subjects of another, unless they are specially
provided for in its stipulations. All personal complaints of losses
sustained or injuries committed by subjects of the belligerent powers
during the war are, as a general rule, silenced and extinguished by
the treaty of peace. There are, however, certain exceptions to this
rule, in cases where a valid claim may be subsequently made from
peculiar transactions during the war, as in cases of ransom bills, of
contracts made by prisoners of war for subsistence, and of trade car-
ried on under a license. So, also, in cases of debts contracted, or
injuries committed during the war by such belligerent subjects in a
neutral country. In all these cases the remedy may be asserted subse-
quently to the peace. Although private rights existing before the
war may not be remitted by a treaty of peace, the presumption is
otherwise as to the rights of kings and nations. (Grotius, de Jur. Bel.
ac Pac., lib. 3, cap. 20, § 19; Wheaton, Elem. Int. Law, pt. 4, ch. 4,
§ 3; Vattel, Droit des Gens, liv. 4, ch. 2, $$ 19-21; The Eliza Ann,
1 Dod. Rep., p. 249; The Molly, 1 Dod. Rep., p. 396; Kent, Com. on
Am. Law, vol. 1, p. 168; Wildman, Int. Law, vol. 1, p. 142; Riquelme,
Derecho Pub. Int., lib. 1. tit. 1, cap. 13; Bello, Derecho Internacional,
pt. 2, cap. 9, $ 6; Heffter, Droit International, $ 180; Kluber, Droit des
Gens. Mod., $ 325; Pando, Derecho Pub. Int., p. 582.
Halleck, pp. 851, 852.
But while a treaty of peace extinguishes the original subject of
the war, it does not prevent new complaints from the same contested
right. The grievances which originally kindled the war are settled,
but new grievances arising from the same right or claim, may form
a new cause of war, equally just with the former. The remarks
of Wheaton and Kent on this point are clear and positive, and their
language is almost identical with that of Vattel. “The peace,” says
TREATIES OF PEACE.
685
Wheaton, "relates to the war which it termines; and is perpetual, in
the sense that the war can not be revived for the same cause. This will
not, however, preclude the right to claim and resist, if the grievances
which originally kindled the war be repeated,--for that would furnish
a new injury, and a new cause of war, equally just with the former.'
If an abstract right be in question between the parties, on which the
treaty of peace is silent, it follows that all previous complaints and
injury, arising under such claim, are thrown into oblivion by the
amnesty, necessarily implied, if not expressed; but the claim itself is
not thereby settled either one way or the other. In the absence of
express renunciation or recognition, it remains open for future discus-
sion.” “Peace," says Kent, "leaves the contracting parties without
any right of committing hostility, for the very cause which kindled
the war, or for what has passed in the course of it. It is, therefore,
no longer permitted to take up arms for the same cause. But this
will not preclude the right to complain and resist, if the same griev-
ances which kindled the war be renewed and repeated, for that would
furnish a new injury, and a new cause of war equally just with the
former war. If an abstract right be in question between the parties,
the right, for instance, to impress at sea one's own subjects, from the
merchant vessels of the other, and the parties make peace without
taking any notice of the question, it follows of course, that all past
grievances, damages and injury, arising under such claim, are thrown
into oblivion by the amnesty which every treaty implies, but the claim
itself is not thereby settled, either one way or the other. It remains
open for future discussion, because the treaty wanted an express con-
cession or renunciation of the claim itself.” (Vattel, Droit des Gens,
liv. 4, ch. 2, $$ 19, 20; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 3;
Kent, Com. on Am. Law, vol. 1, pp. 168, 169; Riquelme, Derecho Pub.
Int., lib. 1, tit. 2, cap. 13.)
Halleck, pp. 852, 853.
>
A treaty of peace leaves everything in the state in which it finds it,
unless there be some express stipulations to the contrary. The exist-
ing state of possession is maintained, except so far as altered by the
terms of the treaty. If nothing be said about the conquered country
or places, they remain with the possessor, and his title cannot after-
wards be called in question. The intervention of peace covers all
defects of title, and vests a lawful possession in the purchaser, in the
same manner as it quiets the title of the hostile captor himself. This
general rule is applied, without exception, to personal property or
real, and is called the principle of uti possidetis. (Kent, Com. on
Am. Law, vol. 1, p. 169; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 4;
Grotius, de Jur. Bel. ac Pac, lib. 3, cap. 6, $$ 4, 5; Vattel, Droit des
1
686
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Gens, liv. 3, ch. 13, $$ 197, 198; Martens, Precis du Droit des Gens,
§ 282; Kluber, Droit des Gens Mod., $$ 254–259; Mably, Droit de 1
Europe, tome 1, ch. 2, p. 144; The Foltina, 1 Dodson's Rep., p. 452;
Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 13; Bello, Derecho
Internacional, pt. 2, cap. 9, $ 6; Heffter, Droit International, $ 181.)
Halleck, pp. 853, 854.
Treaties of peace are equally valid, whether made with the authori-
ties which declared the war, or with a new ruling power or de facto
government. Other nations have no right to interfere with the do-
mestic affairs of any particular nation, or to judge of the title of the
party in possession of the supreme authority. They are to look only
to the fact of possession, and the power conferred upon such authori-
ties, by the then existing plan of government, or fundamental law.
Treaties of peace, made by the competent authorities of such govern-
ments, are obligatory upon the whole nation, and, consequently, upon
all succeeding governments, whatever may be their character. “If
the treaty requires the payment of money, to carry it into effect,
says Kent, “and the money cannot be raised but by an act of the
legislature, the treaty is morally obligatory upon the legislature to
pass the law, and to refuse it would be a breach of public faith. The
department of the government that is intrusted by the constitution
with the treaty-making power, is competent to bind the national
faith in its discretion; for the power, to make treaties of peace, must
be coextensive with all the exigencies of the nation, and necessarily
involves in it that portion of the national sovereignty, which has the
exclusive direction of diplomatic regulations and contracts with
foreign powers. All treaties made by that power, become of abso-
lute efficacy, because they are the supreme law. of the land.” (Kent,
Com. on Am. Law, vol. 1, pp. 165, 166; Vattel, Droit des Gens, liv.
4, ch. 2, § 14; Bello, Derecho Internacional, pt. 2, cap. 9, § 6; Heffter,
Droit International, § 84.)
Halleck, pp. 854, 855.
Although occasionally war ends through simple cessation of hos-
tilities, and although subjugation is not at all rare or irregular,
the most frequent end of war is a treaty of peace. Many publicists
correctly call a treaty of peace the normal mode of terminating war.
On the one hand, simple cessation of hostilities is certainly an irreg-
ular mode. Subjugation, on the other hand, is in most cases either
not within the scope of the intention of the victor or not realisable.
And it is quite reasonable that a treaty of peace should be the normal
end of war.
States which are driven from disagreement to war
will, sooner or later, when the fortune of war has given its decision,
TREATIES OF PEACE.
687
be convinced that the armed contention ought to be terminated.
Thus a mutual understanding and agreement upon certain terms is
the normal mode of ending the contention. And it is a treaty of
peace which embodies such understanding.
Oppenheim, vol. II, pp. 327, 328.
The Making of the Treaty of Peace.--The part played by good
offices and mediation in the opening of negotiations for peace, and
the incidental procedure, have already been touched on. The fact
that negotiations for peace have been entered on does not, however,
in itself suspend hostilities; although such a suspension is usually
provided for by armistice, which is itself governed by the laws
and usages of war. The treaty of peace is sometimes preceded by
preliminaries of peace,” which are intended not merely to suspend
but to bring both hostilities and other incidents of the state of war
to a close, at an earlier moment than the arrangement of a definitive
treaty would allow. They embody, in fact, the essential conditions
agreed on, and, although intended to be replaced and capable of
being modified by the definitive treaty, they are regarded as binding
as from the date of their signature. Sometimes, however, either by
the preliminaries of peace or by the definitive treaty, a future date is
fixed for the termination of hostilities, or even different dates for
different localities; the effect of which will be considered hereafter.
The actual terms of peace depend, of course, on the relative position
of the parties. Nevertheless the effect of a war of any magnitude
on the interests of other States is now so considerable, that both the
conclusion of peace and the terms agreed on are often influenced
greatly by the pressure of international opinion, of which the Treaty
of Portsmouth may be said to afford an example.
Cobbett, pt. II, p. 226, 227.
Walker v. Baird, A. C. 491.-Lord Herschell said (p. 497): “The
learned Attorney-General, who argued the case before their Lord-
ships on behalf of the appellant, conceded that he could not maintain
the proposition that the Crown could sanction an invasion by its offi-
cers of the rights of private individuals whenever it was necessary
order to compel obedience to the provisions of a treaty. The proposi-
tion he contended for was a more limited one. The power of making
treaties of peace is, as he truly said, vested by our constitution in the
Crown. He urged that there must of necessity also l'eside in the
Crown the power of compelling its subjects to obey the provisions of
a treaty arrived at for the purpose of putting an end to a state of war.
He further contended that if this be so, the power must equally extend
to the provisions of a treaty having for its object the preservation of
688
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
peace, that an agreement which was arrived at to avert a war which
was imminent was akin to a treaty of peace, and subject to the same
constitutional law. Whether the power contended for does exist in
the case of treaties of peace, and whether if so it exists equally in the
case of treaties akin to a treaty of peace, or whether in both or either
of these cases interference with private rights can be authorized other-
wise than by the legislature, are grave questions upon which their
Lordships do not find it necessary to express an opinion. Their Lord-
ships agree with the Court below in thinking that the allegations con-
tained in the statement of defence do not bring the case within the
limits of the proposition for which alone the appellant's counsel
contended."
TREATIES OF PEACE, WHO MAY MAKE.
The same power which has the right to declare and carry on war,
would seem naturally to be the proper power to make and conclude a
treaty of peace; but the disposition of this power will depend upon the
local constitution of every nation; and it sometimes happens that the
power of making peace is committed to a body of men who have not
the power to make war. In Sweden, after the death of Charles XII.,
the king could declare war without the consent of the national diet,
but he made peace in conjunction with the senate. So, by the Consti-
tution of the United States, the President, by and with the advice and
consent of two-thirds of the Senate, may make peace, but it is reserved
to Congress to declare war. This provision in our Constitution is well
adapted (as will be shown more fully hereafter) to unite, in the
negotiation and conclusion of treaties, the advantage of talents, ex-
perience, stability, and a comprehensive knowledge of national inter-
est, with the requisite secrecy and despatch.
Kent, vol. I, p. 180.
The department of the government that is intrusted by the Consti-
tution with the treaty-making power is competent to bind the national
faith in its discretion; for the power to make treaties of peace must be
coextensive with all the exigencies of the nation, and necessarily in-
volves in it that portion of the national sovereignty which has the
exclusive direction of diplomatic negotiations and contracts with
foreign powers. All treaties made by that power become of absolute
efficacy, because they are the supreme law of the land.
Kent. vol. I, pp. 180, 181.
A treaty of peace is valid and binding on the nation, if made with
the present ruling power of the nation, or the government de facto.
Other nations have no right to interfere with the domestic affairs
of any particular nation, or to examine and judge of the title of the
party in possession of the supreme authority. They are to look only
to the fact of possession. And it is an acknowledged rule of inter-
national law, that the principal party in whose name the war is made
cannot justly make peace without including those defensive allies in
the pacification who have afforded assistance, though they may not
have acted as principals; for it would be faithless and cruel for the
principal in the war to leave his weaker ally to the full force of the
enemy's resentment. The ally is, however, to be no further a party to
689
690
SELECTED TOPICS CONNECTED WITH LAIVS OF WARFARE.
the stipulations and obligations of the treaty than he has been willing
to consent. All that the principal can require is, that his ally be con-
sidered as restored to a state of peace. Every alliance, in which all the
parties are principals in the war, obliges the allies to treat in concert,
though each one makes a separate treaty of peace for himself.
Kent, vol. I, p. 182.
The power to declare war does not necessarily include that of mak-
ing a treaty of peace. These two powers are intimately connected,
and the latter would seem naturally to follow the former. They are,
therefore, generally associated together, though not always. In un-
limited monarchies both reside in the sovereign; and even in limited
or constitutional monarchies, both may be vested in the crown, yet the
conditions of the treaty of peace may be such as to require its ratifica-
tion by other authorities of the state. For, although the state may
have intrusted to the prudence of her ruler the general authority tú
determine on war and peace, yet this power may be limited in many
particulars by the fundamental law or constitution. A nation has the
free disposal of its own domestic affairs and form of government, and
its sovereign power of making war and peace may be intrusted to a
single person, or it may be divided among a number of persons.
(Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 1; K’ent, Com. on Am. Law,
vol. 1, p. 165; Chitty, Com. Law, vol. 1, p. 378; Merlin, Repertoire,
verb. Declaration de Guerre; Heffter, Droit Internacional, $ $ 81,
et seq.; Vattel. Droit des Gens, liv. 4, ch. 2, § 10; The Hoop, 1 Rob.
Rep., p. 196.)
Halleck, pp. 845, 846.
Thus, Francis I., of France, attempted by the treaty of Madrid, to
cede to the emperor Charles V. the province of Burgundy; but the
states-general, under the constitution of the old French Monarchy,
declared that the king had no authority to alienate any part of the
kingdom by a treaty of peace. The cession of the province of Bur-
gundy was, therefore, annulled, as contrary to the fundamental laws
of the kingdom. Under Richelieu and Louis XIV. the old feudal
constitution of France was abolished, and all the powers of govern-
ment concentrated in the hands of the king. Of the different con-
stitutions established in France since the revolution of 1789, some
have limited the power of concluding a peace, while others have vested
it in the crown without any nominal limitation. Nevertheless, so long
as the chambers exercise a legislative authority, they necessarily ex-
ercise an influence on the treaty-making power, in their right to re-
fuse the passage of laws to carry such treaties into effect. In Great
Britain, the treaty-making power, as a branch of the prerogative of
the crown, has, in theory, no limits; but in the practical administra-
MAKERS OF PEACE TREATIES.
· 691
tion of the constitution this power is limited by the general controlling
authority of parliament, which body can compel the crown to make
peace by withholding the supplies necessary for carrying on the war,
and its approbation is necessary to carry into effect a treaty by which
the existing territorial arrangements of the empire are altered. In
confederated governments, as already stated, the treaty making power,
and its extent, must depend upon the nature of the confederation and
the formation and character of the government. By the constitution
of the United States of America, the president has the exclusive power
of making treaties of peace, which, when ratified with the advice and
consent of the senate, become the supreme law of the land, and have
the effect of repealing all other laws of congress, or of the states, which
stand in the way of their stipulations. But congress may, at any
time compel the president to make peace by refusing the means of
carrying on the war, and its approbation is necessary for the passage
of any laws which might be required for carrying into effect the
stipulations of such treaty. (Wheaton, Elem. Int. Law, pt. 4, ch. 4,
§ 2; Story, on the Constitution, b. 3, ch. 37; Bello, Derecho Inter-
nacional, pt. 2, cap.. 9, 6; Chitty, Com. Law, vol. 1, p. 378; Blackstone,
Com., vol. 1, p. 257; The Hoop, 1 Rob. Rep., p. 196.)
Halleck, pp. 846, 847.
Prisoner of war.
A question much discussed in former times, was whether a pris-
oner of war can make a treaty of peace? On this subject Vattel
remarks: “Every legitimate government, whatever it may be, is
established solely for the good and welfare of the state. This in- .
contestible principle being once laid down, the making of peace is no
longer the peculiar province of the king; it belongs to the nation.
Now, it is certain that a captive prince cannot administer the gov-
ernment, or attend to the management of public affairs. How shall
he, who is not free, command a nation? How can he govern it in
such a manner as best to promote the advantage of the people, and the
public welfare? 'He does not, indeed, forfeit his rights; but his cap-
tivity deprives him of the power of exercising them, as he is not in a
condition to direct the use of them to its proper and legitimate end.
He stands in the same predicament as a king in his minority, or labor-
ing under a derangement of his mental faculties. In such circum-
stances, it is necessary that the person or persons whom the laws of
state designate for the regency, should assume the reins of govern-
ment. To them it belongs to treat of peace, to settle the terms on
which it shall be made, and to bring it to a conclusion, in conformity
to the laws. The captive sovereign may himself negotiate the peace,
and promise what personally depends on him, but the treaty does not
become obligatory on the nation till ratified by itself, or by those who
692
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
are invested with the public authority during the prince's captivity,
or, finally, by the sovereign himself after his release." (Vattel
, Droit
des Gens, lib. 4, ch. 2, § 13; Wolfus, Jus Gentium, $ 982; Bello. Derecho
Internacional, pt. 2, cap. 9, $ 6.)
Halleck, p. 847.
Limitation in constitution or law.
Another question of much greater practical difficulty, is the limita-
tion of the treaty-making power, expressed or implied, in the funda-
mental law or constitution of the state. The general authority to
make treaties of peace, necessarily implies the power to stipulate the
conditions of peace; and among these may properly be involved the
cession of the territory and other property of the statė, as well as the
right of sovereignty or jus eminens over private property. "If, then,”
says Wheaton, “there be no limitation expressed in the fundamental
laws of a state, or necessarily implied from the distribution of its con-
stitutional authorities, on the treaty-making power in this respect, it
necessarily extends to the alienation of public and private property,
when deemed necessary for the national safety or policy.” “There
can be no doubt," says Kent, "that the power competent to bind the
nation by treaty, may alienate the public domain and property by
treaty. If a nation has conferred upon its executive department,
without reserve, the right of treating and contracting with other
states, it is considered as having invested it with all the power neces-
sary to make a valid contract. That department is the organ of the
nation, and the alienations by it are valid, because they are done by the
reputed will of the nation. The fundamental laws of a state may
withhold from the executive department the power of transferring
what belongs to the state; but if there be no express provision of that
kind, the inference is that it has confided to the department charged
with the power of making treaties, a discretion commensurate with all
the great interests, wants and necessities of the nation. A power to
make treaties of peace, necessarily implies a power to decide the terms
on which they shall be made; and foreign states could not deal safely
with the government on any other presumption. The power that is
entrusted generally and largely with authority to make valid treaties
of peace, can, of course, bind the nation by alienation of part of its
territory; and this is equally the case, whether that the territory be
already in the occupation of the enemy, or remains in the possession
of the nation, and whether the property be public or private.” The
right of making peace, says Vattel, “authorizes the sovereign to dis-
pose of things even belonging to private persons, and the eminent do-
main gives him this right.” (Vattel, Droit des Gens, liv. 1, ch. 20
8 244; ch. 21, $ 262; liv. 4, ch: 2, SS 11, 12; Kent, Com. on Am. Law,
vol. 1, pp. 166, 167; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 2; Bello,
MAKERS OF PEACE TREATIES.
693
Derecho Internacional, pt. 2, cap. 9, § 6; Real, Science du Gouverne-
ment, tome 5, ch. 3, sec. 5; Grotius, De Jur. Bel. ac Pac., lib. 3, ch. 20,
$7; The Schooner Peggy, 1 Cranch. Rep., p. 103; Ware v. Hilton, 3
Dallas Rep., p. 199.)
Hallock, pp. 848, 849.
Allies.
“The principal party,” says Vattel, “ in whose name the war was
made, cannot justly make peace, without including his allies.” The
same author remarks, that states which have been associated in a war,
or have directly taken part in it, are respectively to make their treaty
of peace each for itself; but that the alliance obliges them to treat in
concert. Such was the practice at Nimeguen, Reiswick, and Utrecht;
at Vienna, in 1814, and at Paris, in 1856, the allies and associates in
the wars concluded by these conventions, signed together, treaties of
peace. As associates in a war ally themselves together for the purpose
of carrying on the war, it is right and proper that they should act in
concert in making a treaty of peace. But as each engages in the war
for himself and on his own responsibility, each should be allowed to:
make his own treaty of peace. To determine in what cases an asso-
ciate in the war may detach himself from the alliance, and make his
own separate and particular peace, is a question of difficult solution.
It has been alluded to in a preceding chapter, and is particularly dis-
cussed by Vattel. Associations and alliances in war, as already stated,
oblige the parties, as a general rule, to treat in concert. But if any one
should insist upon prosecuting the war beyond the object of the asso-
ciation, the others may very properly make peace for themselves.
And any one may make a separate peace for himself, if, by so doing,
he does not violate his obligations, expressed or implied, toward his
associates. His right to separate himself from his allies depends en-
tirely upon the nature and object of the alliance, and the obligations
he has incurred by joining others in the war against a common enemy.
(Vattel, Droit des Gens, liv. 2, chs. 12 and 15; liv. 3, ch. 6; liv. 4, ch. 2,
$ 16; Kent, Com. on Am. Law, vol. 1, p. 169; Wildman, Int. Law, vol.
1, p. 168; Puffendorf, de Jur. Nat. et Gent., liv. 8, cap. 9, $ 5.)
Halleck, pp. 849, 850.
The power of concluding peace, like that of declaring war, depends
upon the municipal constitution of the State. These authorities are
generally associated. In unlimited monarchies, both reside in the
sovereign; and even in limited or constitutional monarchies, each may
be vested in the crown. Such is the British Constitution, at least in
form; but it is well known that, in its practical administration, the
real power of making war actually resides in the Parliament, without
whose approbation it cannot be carried on, and which body has con-
694
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
sequently the power of compelling the crown to make peace, by with-
holding the supplies necessary to prosecute hostilities. The American
Constitution vests the power of declaring war in the two houses of
Congress, with the assent of the President. By the forms of the
Constitution, the President has the exclusive power of making treaties
of peace, which, when ratified with the advice and consent of the
Senate, become the supreme law of the land, and have the effect of
repealing the declaration of war and all other laws of Congress, and
of the several States which stand in the way of their stipulations.
But the Congress may at any time compel the President to make peace,
by refusing the means of carrying on war.
Wheaton, pp. 710, 711.
The power of making treaties of peace, like that of making other
treaties with foreign States, is, or may be, limited in its extent by the
national constitution.
Wheaton, p. 712.
In Great Britain, the treaty-making power, as a branch of the regal
prerogative, has in theory no limits; but it is practically limited by
the general controlling authority of Parliament; whose approbation
is necessary to carry into effect a treaty, by which the existing terri-
torial arrangements of the empire are altered.
Wheaton, p. 714.
Union of several powers.
When several powers unite in a treaty of peace, it is done either by
the union of all as principals in one treaty; or by separate treaties of
each with his enemy, in which case there is no common obligation,
unless these treaties are made common by an express ágreement; or,
finally, a power becomes an accessory to a treaty already made, thus
taking on itself the rights and obligations of a principal.
Woolsey, p. 261,
Action by allies.
If a treaty of alliance requires the parties to it to coöperate in war
until a certain end is gained, nothing but an extreme necessity, such
as the hopelessness of future exertion, allows one of the parties to
make a separate peace with the common enemy. Even if the terms
of alliance for the purposes of war are less definite, it is dishonorable
for an ally, above all for a principal party, to desert his confederates
and leave them at the mercy of the foe. Allies may make each his
own peace, and obtain special concessions, but they are bound in good
faith to act together, and to secure one another, as far as possible,
against a power which may be stronger than any of them separately. .
Woolsey, pp. 262, 263.
MAKERS OF PEACE TREATIES.
695
As the treaty-making Power is according to the Law of Nations in
the hands of the head of the State, it is he who is competent to con-
clude peace. But just as constitutional restrictions imposed upon
heads of States regarding their general power of concluding treaties
are of importance for International Law, so constitutional restrictions
imposed upon heads of States regarding their competence to make
peace are of similar importance. And, therefore, such treaties of
peace concluded by heads of States as violate constitutional restric-
tions are not binding upon the States concerned, because the heads
have exceeded their powers. The Constitutions of the several States
settle the matter differently, and it is not at all necessary that the
power of declaring war and that of making peace should be vested by
Constitution in the same hands. In Great Britain the power of the
Crown to declare war and to make peace is indeed unrestricted. But
in the German Empire, for instance, it is different; for whereas the
Emperor, the case of an attack on German territory excepted, may
declare war only with the consent of the Bundesrath, his power of
making peace is unrestricted.
The controverted question as to whether the head of a State who is
a prisoner of war is competent to make peace ought to be answered
in the negative. The reason is that the head of a constitutional State,
although he does not by becoming a prisoner of war lose his position,
he nevertheless thereby loses the power of exercising the rights con-
nected with his position.
Oppenheim, vol. 2, pp. 330, 331.
a
.
Ratification.
We will now pass on to consider the treaty-making power and its
methods of action, in so far as they are dealt with by International
Law. In each state the right of making treaties rests with those
authorities to whom it is confided by the political constitution. As
long as there is some power in a country whose word can bind the
whole body politic, other states must do their international business
with it, and have no right to inquire into its nature and the circum-
stances of its creation. But other important matters connected with
treaties are of international concern. The first of these to be dis-
cussed is
THE NATURE AND NECESSITY OF RATIFICATION.
Ratification is a formal ceremony whereby, some time after a treaty
has been signed, solemn confirmations of it are excahnged by the con-
tracting parties. No treaty is binding without ratification, unless
there is a special agreement to the contrary. The full powers given to
plenipotentiaries must be understood as conferring a right to con-
clude agreements subject to the ultimate decision of the governments
696
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
that they represent. Sometimes, however, it is agreed that certain
preliminary engagements in a treaty shall take effect immediately,
without waiting for the exchange of ratifications, as was the case with
the Treaty of London of 1840 for the settlement of the Egyptian
question. A reserved protocol annexed to it stipulated that the pre-
liminary measures mentioned in the second article should be carried
out at once. But when a treaty is ratified, its legal effects are held to
date from the moment of signature, unless, as was the case with the
Treaty of Paris of 1856, it is agreed that they shall come into force
from the moment of ratification. To this rule treaties of cession are
an exception; for it is undoubted law that they commence to operate
from the time of the actual transfer of the ceded territory.
The question whether a state is bound to ratify a treaty signed by
its lawful representatives is sometimes argued at great length by text-
writers. But a reference to practice robs it of its difficulties. When
the ratifying power and the treaty-making power are placed by the
constitution of a state in different hands, there cannot be the slightest
obligation, moral or legal, for it to ratify. Other states know that the
approval of two authorities has to be gained for a diplomatic instru-
ment before it can be considered as agreed to, and they take their meas-
ures accordingly. The Senate of the United States has frequently
refused to ratify treaties made by the executive power, or amended
them as a condition of ratification. In 1897, for instance, it refused
its assent to a treaty with Great Britain for the submission to arbitra-
tion of future disputes between the two countries; and in 1900 it intro-
duced amendments that Great Britain was unable to accept into a
treaty dealing with the Panama Canal. Fortunately the questions
that arose were satisfactorily settled by the Hay-Pauncefote Treaty
of the following year. But when the treaty-making power and the
ratifying power are vested in the same hands, it is held that some rea-
son should be forthcoming to justify a refusal to ratify. If the negoti-
ators have exceeded their powers, if any deceit as to matters of fact
has been practised upon them, or if circumstances have entirely
changed since the treaty was signed, there can be no doubt that a state
is quite within its rights in declining to give the last formal sanction
which calls the stipulations of its agents into operation. But modern
practice seems to go further, and give support to the theory that the
time between signature and ratification is granted to the parties for
the purpose of thinking the matter over, and that if a state changes
its mind in the interval for any reason that is at all distinguishable
from mere caprice, it may refuse to complete the bargain by ratifica-
tion. Thus the King of Holland refused in 1841 to ratify a com-
mercial treaty he had concluded as Grand Duke of Luxemburg, on the
ground that since he had signed it he had become convinced that it
would injure the trade of his subjects, and in 1884 Great Britain
MAKERS OF PEACE TREATIES.
697
dropped an agreement she had concluded in 1883 with Portugal con-.
cerning the mouth of the Congo, the reasons being that its provisions
were very far from satisfying the traders and others immediately con-
cerned, and that it was proposed to settle the question along with
many other similar questions at a great International Conference.
Lawrence, pp. 323–325.
i
In order to be binding, a treaty of peace must, like any other inter-
national act, have been made or ratified by some authority competent
to make it under the domestic constitution of the provisions of which
in this regard the other contracting party will be presumed to have
notice. The terms of a treaty of peace otherwise duly concluded be-
tween the belligerents may, moreover, conceivably be impugned by
other States as incompatible with their legitimate interests, or as
affecting matters that have previously been the subject of interna-
tional settlement. It was on this ground that the terms of the Treaty
of San Stefano, which was concluded in 1878 between Russia and Tur-
key, were revised by the Congress of Berlin. On this ground, too, it
would seem that the assumption of a new status on the part of Bul-
garia in 1908, and the annexation of Bosnia and Herzegovina by
Austro-Hungary, which immediately followed, ought strictly to have
been submitted for approval to the signatories of the Treaty of Berlin,
1878.
But terms likely to give umbrage to other Powers are often em-
bodied in secret articles of agreement.
Cobbett, pt. II, p. 227.
The Treaty-making power in different States. The question as
to where the treaty-making power lies in each State is primarily a
question of municipal law; although it possesses also a certain inter-
national importance, in so far as a treaty, to be binding on a State,
must have been made by an authority competent to make it under
the municipal law. In Great Britain the treaty-making power is
formally vested in the Sovereign, who is required, however, to act in
the matter on the advice of his Ministers; whilst the actual treaty-
making power really resides in the Cabinet, subject to its responsi-
bility to the majority in the Commons. Such treaties will also be
binding on all British colonies and dependencies, if so intended;
although in the case of treaties which may affect local interests it is
usual, in the case of the major colonies, to confer on the local authori-
ties a right of adhering to or rejecting the treaty, as may be thought
fit; whilst in the case of treaties which specially affect the relations
of any particular “possession” with a foreign State the practice is
occasionally adopted of associating some representative of the posses-
sion with the British plenipotentiary in the conduct of the negotia-
110678-1945
698
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tions. At the same time, as has already been pointed out, treaties
made by the Crown which derogate from the legal rights of private
persons or corporations cannot be given effect to in the United
Kingdom unless they have been authorized or ratified by Act of
Parliament, or, in the case of the colonies, either by Act of Parlia-
ment or by Act of the colonial Legislature. In the United States
the treaty-making power resides in the President, as head of the
federal executive, subject to the approval of two-thirds of the Senate.
Once approved, however, such treaties have the effect of a law of the
land; although, like other laws, they are subject to the ordinary con-
stitutional limitations, and are liable to be superseded by subsequent
Acts of Congress inconsistent with them. In France the treaty.
making power is vested nominally in the President, although really
exercised by the Cabinet; but treaties of peace and commerce, and
treaties pledging the State finances, or affecting the status of persons
and the rights of property of Frenchmen abroad, are only binding
after having been voted by the two Chambers. In cases where munici-
pal legislation, dependent on some body other than the treaty-
making power in a State, is necessary in order to give effect to a
treaty, it is usual to stipulate that the treaty shall not become operative
until such auxiliary measures have been duly passed. But where
no such condition attaches either expressly or by necessary implica-
tion, then it would seem that the State in default may justly be held
accountable for the non-fulfillment of its obligations, even though the
default is due to the failure of some branch of government over
which the treaty-making power has no control.
Cobbett, pt. 1, pp. 319, 320; Walker 2. Baird, (1892), A. C. 491.
“He [the President] shall have Power, by and with the Advice
and Consent of the Senate, to make Treaties, provided two-thirds of
the Senators present concur."
Moore's Digest, vol. I, p. 160 ; Constitution of the United States, Art. II,
sec. 2, cl. 2.
See Crandall, Treaties, Their Making and Enforcement, 54 et seq.
See, generally, the Treaty-Making Power of the United States, by Charles
Henry Butler, New York, 1902, 2 vols.
As to different kinds of treaties, see Martens' Law of Nations. Cobbett's trans-
lation (Philadelphia, 1795), § 3, p. 53.
"That the treaty power of the United States extends to all proper
subjects of negotiation between our government and the governments
of other nations is clear. It is also clear that the protection which
should be afforded to the citizens of one country owning property in
another, and the manner in which that property may be transferred,
derised or inherited, are fitting subjects for such negotiation and of
regulation by mutual stipulations between the two countries. As com-
MAKERS OF PEACE TREATIES.
699
O
mercial intercourse increases between different countries the resi-
dence of citizens of one country within the territory of the other
naturally follows, and the removal of their disability from alienage
to hold, transfer and inherit property in such cases tends to promote
amicable relations. Such removal has been within the present cen-
tury the frequent subject of treaty arrangement.
Moore's Digest, vol. V, pp. 160, 161 ; Geofroy v. Riggs (1890), 133 U. S.
258, 266-267.
The Constitution of the United States confers absolutely on the
government of the United States the power of making war and of
making treaties, from which it follows that that government pos-
sesses the power of acquiring territory either by conquest or by
treaty.
Moore's Digest, vol. V, p. 165; American Insurance Co. v. Canter, 1
Pet. 542. See, also, supra, § 94.
It is a sound principle of national law, and applies to the treaty-
making power of this government, whether exercised with a foreign
nation or an Indian tribe, that all questions of disputed boundaries
may be settled by the parties to the treaty.
Moore's Digest, vol. V, p. 165; Lattimer 1. Poteet, 14 Pet. 14.
“There is no secret treaty of the kind you describe between the
United States and Russia, and I may well add that there are no ef-
fective secret engagements of any kind between the United States
and other sovereignties, all concluded treaties becoming effective only
upon the ratification and public proclamation by the President.”
Moore's Digest, vol. V, p. 165; Mr. Bayard, Sec. of State, to Mr. Samuels,
May 5, 1885, 155 MS. Dom. Let. 291.
The negotiation and modification of treaties is a prerogative of the
Executive, with which the courts cannot interfere.
Moore's Digest, vol. V, p. 179; Frelinghuysen v. Key, 110 U. S. 64;
Great West. Ins. Co. v. United States, 19 Ct. Cls. 206; s. C., 112 U. S.
193, to the same effect; Angarica de la Rua v. Bayard, 4 Mackey, 310.
Where a diplomatic representative of the United States is entrusted
with the negotiation of a treaty, a full power will be given to him.
"In case of urgent need," a compact may be entered into " in the ab-
sence of specific instructions or powers;" but in such cases the agree-
ment should be put into the form of a simple protocol, which should
contain the explicit statement that it is signed subject to the approval
of the signer's government.
Moore's Digest, vol. V, p. 179; Instructions to Diplomatic Officers of the
United States (1897), 88 242, 243, p. 99.
700
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
In 1894, when the Chinese and Japanese plenipotentiaries met at
Hiroshima, in Japan, to conclude a peace, it was found that the pow-
ers of the Chinese plenipotentiaries authorized them to meet and
negotiate the matter with plenipotentiaries appointed by Japan,” but
directed them to “telegraph to Tsung-li yamên for the purpose of
obtaining our command, by which you will abide.”
The powers of the Japanese plenipotentiaries authorized them to
conclude and sign “preliminaries of peace," and stated that the Em-
peror had “confided to them full powers for that purpose," and
would ratify all the stipulations they might agree on, if on examina-
tion such stipulations were found to be proper and in good and due
form.
The Japanese plenipotentiaries declined to accept the powers of
the Chinese plenipotentiaries, on the ground that they did not au-
thorize the latter to conclude or sign anything, or even indicate the
subject of negotiations, and were silent on the subject of ratification.
The negotiations were suspended in order that the Chinese plenipo-
tentiaries might obtain new powers, which they did.
Moore's Digest, vol. V, pp. 179, 180; For. Rel. 1894, App. 1, 97–106.
Proclamation.
The proclamation of a ratified treaty can be made only by the
President of the United States, and can not be issued by the legation
by whom the treaty is negotiated.
Moore's Digest, vol. V, p. 210; Mr. Blaine, Sec. of State, to Mr. Angell,
Oct, 10, 1881, MS. Inst. China, III 266.
TREATIES OF PEACE, PROVISIONS OF.
Alienation of public domain and public property.
There can be no doubt that the power competent to bind the nation
by treaty may alienate the public domain and property by treaty. If
a nation has conferred upon its executive department, without
reserve, the right of treating and contracting with other states, it is
considered as having invested it with all the power necessary to make
a valid contract. That department is the organ of the nation, and
the alienations by it are valid, because they are done by the reputed
will of the nation. The fundamental laws of a state may withhold
from the executive department the power of transferring what belongs
to the state; but if there be no express provision of that kind, the
inference is that it has confided to the department charged with the
power of making treaties a discretion commensurate with all the great
interests and wants and necessities of the nations. A power to make
treaties of peace necessarily implies a power to decide the terms on
which they shall be made, and foreign states could not deal safely
with the government upon any other presumption. The power that
is intrusted generally and largely with authority to make valid treaties
of peace can, of course, bind the nation by alienation of part of its
territory; and this is equally the case whether that territory be already
in the occupation of the enemy or remains in the possession of the
nation, and whether the property be public or private.
Kent, vol. I, p. 181.
Private rights.
In the case of the Schooner Peggy, the Supreme Court of the United
States admitted that individual rights, acquired by war, and vested
rights of the citizens, might be sacrificed by treaty for national pur-
poses. So, in the case of Ware v. Hylton, it was said to be a clear
principle of national law that private rights might be sacrificed by
treaty to secure the public safety, though the government would be
bound to make compensation and indemnity to the individuals whose
rights had thus been surrendered. The power to alienate, and the
duty to make compensation, are both laid down by Grotius in equally
explicit terms.
Kent, vol. I, pp. 181, 182; The Schooner Peggy, 1 Cranch, 103; Ware 1.
Hylton, 3 Dallas, 199, 245; Little v. Watson, 32 Maine, 214; Meade v.
U. S., 2 Nott & H. (Court of Claims), 244.
701
702
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Restoration.
Things stipulated to be restored by the treaty are to be restored in
the condition in which the treaty found them, unless there be an ex-
press stipulation to the contrary. A fortress or town is, therefore, to
be restored as it was when taken, so far as it still remains in that con-
dition when the peace is concluded. There is no obligation to repair
a dismantled fortress, nor to restore the former condition of a ter-
ritory which has been ravaged by the operations of war. On the other
hand, to dismantle a fortification or to lay waste a country, after the
conclusion of peace, would be an act of perfidy. A conqueror may,
however, demolish new works constructed by himself, but not repairs
made by him in old works which he himself had injured during the
war. The remarks of Vattel on this subject have been approved and
adopted by subsequent writers: “Those things,” he says, "of which
the restitution is, without further explanation, simply stipulated in
the treaty of peace, are to be restored in the same state in which they
were taken; for the word restitution naturally implies that everything
should be replaced in its former condition. Thus, the restitution of a
thing is to be accompanied with that of all the rights which were
annexed to it when taken. But this rule must not be extended to
compromise those changes which may have been the natural con-
sequences and effects of the war itself and of its operations." The
products of things restored or ceded by the treaty of peace, are due
from the time the restoration or cession of the things themselves takes
effect or is due. But all products which were due or collected prior
to the date of the restitution or cession, are not to be delivered up,
unless otherwise specially stipulated in the treaty, for the fruits be-
long to the proprietor of the thing, and the possession of things taken
in war is accounted a lawful title, subject, however, to the conditions
of peace. “For the same reason," says Vattel, “the cession of a fund
does not imply that of the produce anteriorly due. This Augustus
justly maintained against Sextus Pompeius, who, on having the Pel-
oponnesus given to him, claimed the imposts of the former years."
(Vattel, Droit des Gens, liv. 4, ch. 3, $$ 30, 31; Appian, De Bel. Civ.,
lib. 5; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 29, $ 22; Bello, Derecho
Internacional, pt. 2, cap. 9, § 6; Wheaton, Elem. Int. Law, pt. 4, ch.
4, $ 6.)
Halleck, 859, 860.
Contributions.
The same rule is laid down by Vattel, with respect to contributions
levied upon the territory or inhabitants ceded or restored by the
treaty of peace. “To raise contributions,” he says, “is an act of
hostility, which, on the conclusion of peace, is to cease. Those before
promised, and not yet paid, are due, and may be required as a debt.
PROVISIONS OF PEACE TREATIES.
703
But, in order to obviate all difficulty, it is proper that the contracting
parties should clearly and minutely explain their intentions respect-
ing matters of this nature; and they are generally careful to do so.
But the correctness of the rule, as thus applied to territory restored
by the treaty, may very well be doubted. There is a broad distinc-
tion between military and civil rights; the latter are acquired by con-
tract, conveyance, or other title, and are evidenced by the ordinary
proofs of title; while the latter are acquired by capture or conquest,
and are evidenced by possession alone—they begin and end with pos-
session. If the conquest is restored by the treaty of peace, the right
of possession is terminated, and with it all the incidental rights of
military occupation, such as the right of levying and collecting mili-
tary contributions. The principle of uti possidetis being the basis of
every treaty of peace, unless otherwise specially provided in the
treaty itself, it follows that the conqueror (the treaty being silent on
this point,) is entitled to all the contributions which he has collected,
by the right of military occupation, of the belligerent territory now
surrendered; but not to those which he has levied but failed to collect.
His rights over the inhabitants of such territory are military rights,
and, consequently, terminate with the right of possession, 2.
e.
with
the treaty of peace which restores the conquest. (Vattel, Droit des
Gens, liv. 4, ch. 3, $ 29; Duponceau, Translation of Bynkershoek, p.
116, note; Wheaton, Elem. Int. Law, pt. 4, ch. 1, § 4; Vide Ante,
chapters xxxii and xxxiii; Heffter, Droit International, $$ 176, et seq.;
Bello, Derecho Internacional, pt. 2, cap. 9, $ 6.)
Halleck, pp. 860, 861.
Alienation of private property.
We have already seen that a general authority to make treaties of
peace necessarily implies a power to stipulate the conditions of peace;
and among these may properly be involved the cession of the public
territory and other property, as well as of private property included
in the eminent domain. If, then, there be no limitation, expressed
in the fundamental laws of the State, or necessarily implied from the
distribution of its constitutional authorities, on the treaty-making
power in this respect, it necessarily extends to the alienation of public
and private property, when deemed necessary for the national safety
or policy.
The duty of making compensation to individuals, whose private
property is thus sacrificed to the general welfare, is inculcated by
public jurists, as correlative to the sovereign right of alienating
those things which are included in the eminent domain; but this duty
must have its limits. No government can be supposed to be able,
consistently with the welfare of the whole community, to assume the
burden of losses produced by conquest, or the violent dismember-
704
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ment of the State. When, then, the cession of territory is the result
of coercion and conquest, forming a case of imperious necessity be-
yond the power of the State to control, it does not impose any obliga-
tion upon the government to indemnify those who may suffer a loss
of property by the cession.
Wheaton, p. 712.
Dismemberment of State.
The fundamental laws of most free governments limit the treaty-
making power, in respect to the dismemberment of the State, either
by an express prohibition, or by necessary implication from the nature
of the constitution. Thus, eren under the constitution of the old
French monarchy, the States-General of the kingdom declared that
Francis I. had no power to dismember the kingdom, as was attempted
by the treaty of Madrid, concluded by that monarch; and that not
merely upon the ground that he was a prisoner, but that the assent
of the nation, represented in the States-General, was essential to the
validity of the treaty. The cession of the province of Burgundy
was therefore annulled, as contrary to the fundamental laws of the
kingdom; and the provincial States of that duchy, according to
Mezeray, declared, that “never having been other than subjects of
the crown of France, they would die in that allegiance; and if aban-
doned by the king, they would take up arms, and maintain by force
their independence, rather than pass under a foreign dominion."
But when the ancient feudal constitution of France was gradually
abolished by the disuse of the States-General, and the absolute mon-
archy became firmly established under Richelieu and Louis XIV., the
authority of ceding portions of the public territory, as the price of
peace, passed into the hands of the king, in whom all the other powers
of government were concentrated. The different constitutions es-
tablished in France, subsequent to the Revolution of 1789, limited
this authority in the hands of the executive in various degrees. The
provision in the Constitution of 1795, by which the recently conquered
countries on the left bank of the Rhine were annexed to the French
territory, became an insuperable obstacle to the conclusion of peace in
the conferences at Lisle.
Wheaton, pp. 712, 713.
Confederated Governments.
In confederated governments, the extent of the treaty-making
power, in this respect, must depend upon the nature of the confed-
eration. If the union consists of a system of confederated States,
each retaining its own sovereignty complete and unimpaired, it is
evident that the federal head, even if invested with the general power
of making treaties of peace for the confederacy, cannot lawfully
alienate the whole or any portion of the territory of any member of
PROVISIONS OF PEACE TREATIES.
705
the union, without the express assent of that member. Such was the
theory of the ancient Germanic Constitution; the dismemberment of
its territory was contrary to the fundamental laws and maxims of
the empire; and such is believed to be the actual constitution of the
present Germanic Confederation. This theory of the public law of
Germany has often been compelled to yield in practice to imperious
necessity; such as that which forced the cession to France of the
territories belonging to the States of the empire, on the left bank of
the Rhine, by the treaty of Luneville, in 1800. Even in the case of
a supreme federal government, or composite State, like that of the
United States of America, it may, perhaps, be doubted how far the
mere general treaty-making power, vested in the federal head, neces-
sarily carries with it that of alienating the territory of any member
of the union without its consent.
Wheaton, p. 714.
In United States.
The disputed north-eastern boundary between Great Britain and
the United States involved the territory of the State of Maine, in
which Massachusetts also had an interest. The line established by
the Ashburton Treaty, of 1842, differed from that claimed by Maine,
and ceded parts over which Maine had exercised jurisdiction. Still,
the treaty was a sovereign act of the United States with Great Brit-
ain, and operated an international settlement. Neither of the States
of Maine or Massachusetts was in any way party to it, or named in
it, except in the fifth article, in which the United States agrees to
receive and pay over to those States certain portions of a common
fund established by consent, for the care of the territory while under
dispute, and to pay to those States a further sum“ on account of
their assent to the line of boundary described in this treaty.” Lord
Ashburton disclaimed all responsibility of Great Britain for any
matters between the United States and the individual States referred
to in that article. Commissioners on the part of Maine and Massa-
chusetts gave their assent to the treaty before it was concluded by the
government; but that was an internal matter, and did not concern
Great Britain. Neither is the fact that the United States chose to
secure the consent of Massachusetts and Maine, conclusive upon the
much canvassed question of its constitutional power to have made the
treaty without their assent. (United States Laws, viii, 554. Web-
ster's Works, vi. 272, 289. Opinions of Attorneys-General, vi. 756.
Kent's Comm. i. 166, 167. Woolsey's Introd. $ 99. Halleck's Intern.
Law, 848. The schooner Peggy, Cranch, i. 103. Ware v. Hilton,
Dallas, iii. 199.)
Wheaton, pp. 714, 715, Dana's note 250.
706
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE,
Interpretation.
Treaties of peace are to be interpreted by the same rules with other
treaties. Disputes respecting their meaning or alleged infraction
may be adjusted by amicable negotiation between the contracting
parties, by the mediation of friendly powers, or by reference to the
arbitration of some one power selected by the parties. This latter
office has recently been assumed, in several instances, by the five great
powers of Europe, with the view of preventing the disturbance of
the general peace, by a partial infraction of the territorial arrange-
ments stipulated by the treaty of Vienna, in consequence of the in-
ternal revolutions which have taken place in some of the States con-
stituted by those treaties. Such are the protocols of the conference
of London, by which a suspension of hostilities between Holland and
Belgium was enforced, and terms of separation between the two
countries proposed, which, when accepted by both, became the basis
of a permanent peace. The objections to this species of interference,
and the difficulty of reconciling it with the independence of the
smaller powers, are obvious; but it is clearly distinguishable from
that general right of superintendence over the internal affairs of
other States, asserted by the powers who were the original parties to
the Holy Alliance, for the purpose of preventing changes in the mu-
nicipal constitutions not proceeding from the voluntary concession
of the reigning sovereign, or supposed in their consequences, imme-
diate or remote, to threaten the social order of Europe. The pro-
ceedings of the conference treated the revolution, by which the union
between Holland and Belgium, established by the Congress of
Vienna, had been dissolved, as an irrevocable event; and confirmed
the independence, neutrality, and state of territorial possession of
Belgium, upon the conditions contained in the treaty of the 15th
November, 1831, between the five powers and that kingdom, subject
to such modifications as might ultimately be the result of direct nego-
tiations between Holland and Belgium.
Wheaton, pp. 721, 722.
Interests of third parties.
"In a treaty of peace, also, the interests of powers can be included
which took no direct part in the war, but were either auxiliaries, or
at least had some interest or other in the war or the peace. It ay
be (1) That one of the principal contracting powers stipulates some-
thing in their favor, whether by comprehending them in the treaty,-
so that the peace and amity shall extend to them without thereby
rendering them principal contracting powers, or by inserting a par-
ticular point in their favor; in which case it is not necessary that
they formally signify their acceptance. Or (2) to the treaty may
PROVISIONS OF PEACE TREATIES.
707
be added conventions concluded with or between such states, which
conventions are declared to be parts of the principal document. Or
(3) third powers may be invited to accede, either with a view to ob-
tain their consent or to do them honor. And, on the other hand,
sometimes third powers protest formally against a treaty of peace,
or against one or more of its articles, and hand over such act of prot-
estation to the principal contracting powers." Thus the Pope pro-
tested against the peace of Westphalia, and with the King of Spain
against the final act of the Congress of Vienna.
Woolsey, p. 261; De Martens, sec. 336.
Although a peace is a return to a state of amity, and, among civi-
lized nations, of intercourse, the conditions on which intercourse is
conducted may not be the same as before the war. If a treaty con-
tained no other agreement than that there should be peace between
the parties, there would be a fair presumption that everything was
settled again on its old basis, the cause of war alone being still un-
settled. But treaties usually define anew the terms of intercourse.
The general principles which govern the renewal of intercourse can-
not be laid down, until it is first known what the effect of a war is
upon previous treaties.
Woolsey, p. 263.
As between the contracting states, a treaty of peace is a final settle-
ment of all matters connected with the war to which it puts an end.
If therefore any acts have been done during the course of hostilities
in excess or irrespectively of the rights of war under the authority of
one of the belligerent states, the enemy state cannot urge complaints or
claims from the moment that a treaty is signed, either on its own
behalf or on behalf of its subjects.
It is possible however that ordinary acts of war may have been done
without sufficient authority, that wrongful acts may have been done
wholly without authority, and that subjects of one of the two bel-
ligerent states, without having committed treason, may yet have com-
promised themselves with their own government by dealings with
the enemy. In order to bury the occurrences of the war in oblivion,
and to prevent ill-feeling from being kept alive, in order also to pro-
tect men who may only have been guilty of a technical wrong, or who
may at any rate have been carried away by the excitement of hostili-
ties, and finally in the common interests of belligerents who may be
in occupation of an enemy's country, it is understood that persons act-
ing in any of the ways above mentioned are protected by the conclu-
sion of peace from all civil or criminal processes to which they might
be otherwise exposed in consequence of their conduct in the war, ex-
708
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
cept civil actions arising out of private contracts, and criminal prose-
cutions for acts recognised as crimes by the law of the country to
which the doer belongs, and done under circumstances which remove
them from the category of acts having relation to the war. Actions,
for example, can be brought on ransom bills; if a prisoner of war
borrows money or runs into debt he may be sued; or if a prisoner of
war or a soldier on service commits a common murder he may be
tried and punished. The immunity thus conceded is called an
amnesty.
Usually, but far from invariably, the rule of law is fortified by
express stipulation, and a clause securing an amnesty is inserted in
treaties of peace. Though unnecessary for other purposes, it is re-
quired as a safeguard for subjects of a state who, having had dis-
tinctly treasonable relations with an enemy, are not protected by an
amnesty which is only implied.
Hall, pp. 584, 585.
International Law does not contain any rules regarding the form
of peace treaties; they may, therefore, be concluded verbally or in
writing. But the importance of the matter makes the parties always
conclude a treaty of peace in writing, and there is no instance of a
verbally concluded treaty of peace.
According to the different points stipulated, it is usual to dis-
tinguish different parts within a peace treaty. Besides the preamble,
there are general, special, and separate articles. General articles are
those which stipulate such points as are to be agreed upon in every
treaty of peace, as the date of termination of hostilities, the release
of prisoners of war, and the like. Special árticles are those which
stipulate the special terms of the agreement of peace in question.
Separate articles are those which stipulate points with regard to the
execution of the general and special articles, or which contain reserva-
tions and other special remarks of the parties. Sometimes additional
articles occur. Such are stipulations agreed upon in a special treaty
following the treaty of peace and comprising stipulations regarding
such points as have not been mentioned in the treaty of peace.
Oppenheim, vol. 2, p. 330.
Usual Stipulations.-In addition to the formal establishment of
peaceful relations as between the States previously at war, and apart
from sạch special terms as may be necessary or appropriate, a treaty
of peace usually provides for the immediate or ultimate evacuation
of territory not intended to be ceded; for the actual transfer of terri-
tory agreed to be ceded and rot already in occupation of the proposed
transferee; for the delimitation of boundaries and the protection of
PROVISIONS OF PEACE TREATIES.
709
the interests of subjects of the ceding State; for the repatriation of
prisoners and the payment of any balance that may be due in respect
of their maintenance; for the renewal or replacement of treaties
abrogated by war; and sometimes also for the granting of an amnesty
and the payment of a war indemnity.
Cobbett, pt. II, p. 227.
The Question of Indemnity.—The exaction of a monetary indem-
nity, in addition to the cession of territory or other advantages, has
become a not infrequent condition of terms of peace in cases where
the issue of the struggle leaves the dominant party in a position to
exact this. So, in 1871, Germany, in addition to the cession of Alsace
and Lorraine, exacted from France an indemnity of 5,000,000,000
francs. In some modern wars, however, the successful belligerent has
shown greater magnanimity. So, in 1848, the United States took no
war indemnity from Mexico, and even made some payment for terri-
tory ceded by the latter under pressure of the war. In 1898, again,
the United States exacted no war indemnity from Spain, and even
paid to the latter an indemnity in respect to the cession of the Philip-
pine Islands; but no indemnity was paid in respect to Porto Rico,
whilst Cuba was not allowed to assume liability for any part of the
Spanish debt. Great Britain in 1902—although this was a case of
conquest--not only paid for all requisitions made by the Boer forces,
but contributed a sum of 3,000,000 l. towards other Boer losses.
Where an indemnity is exacted, a part of the territory of the debtor
State is sometimes retained in occupation as security for payment.
Cobbett, pt. II, p. 229.
TREATIES OF PEACE, WHEN THEY TAKE EFFECT.
We have now to consider when the Treaty of Peace takes effect, or
the date from which the operation of it becomes binding, both upon
the public relations of States, and upon the private relations of indi-
vidual members of States.
The exact period of time from which the public Treaty begins to
operate is, as in the case of private contracts, the day upon which it
has passed through all the necessary forms and been ratified: from
that instant all hostilities ought to cease, unless, indeed a particular
day has been specified for the beginning of the Peace.
Vattel is of opinion that the Treaty does not bind the subjects of
States until it has been duly notified to them.
Phillimore, vol. III, pp. 776, 777.
A treaty of peace binds the contracting parties from the moment of
its conclusion, and that is understood to be from the day it is signed.
A treaty made by the minister abroad, when ratified by his sovereign,
relates back to the time of signing; but, like a truce, it cannot affect
the subjects of the nation with guilt, by reason of acts of hostility
subsequent to the date of the treaty, provided they were committed
before the treaty was known. All that can be required in such cases
is, that the government make immediate restitution of things captured
after the cessation of hostilities; and to guard against inconvenience
from the want of due knowledge of the treaty, it is usual to fix the
periods at which hostilities are to cease at different places, and for the
restitution of property taken afterwards.
Kent, vol. I, pp. 184, 185; Hylton v. Brown, 1 Wash. 312.
Sovereign power over territory ceded ends at the moment of cession,
except for municipal purposes and keeping order, for which it con-
tinues until delivery.
Kent, vol. I, p. 184, note; United States v. Reynes, 9 How. 127; Davis v.
Police Jury of Concordia, ib. 280.
Vested rights.
In so far as the treaty affects individual rights which' were vested
before it was ratified, it is not considered as concluded until there is an
exchange of ratifications.
Kent, vol. I, p. 184, note; Haver v. Yaker, 9 Wall, 32.
710
TAKING EFFECT OF PEACE TREATIES.
711
Territories ceded or acquired.
With respect to the cession of places or territories by a treaty of
peace, though the treaty, operates from the making of it, it is a prin-
ciple of public law that the national character of the place agreed to
be surrendered by treaty continues as it was under the character of the
ceding country, until it be actually transferred. Full sovereignty
'cannot be held to have passed by the mere words of the treaty without
actual delivery. To complete the right of property, the right to the
thing and the possession of the thing must be united. This is a neces-
sary principle in the law of property in all systems of jurisprudence.
There must be both the jus in [ad] rem and the jus in re, according to
the distinction of the civilians, and which Barbeyrac says they bor-
rowed from the canon law. This general law of property applies to
the right of territory, no less than to other rights. The practice of
nations has been conformable to this principle, and the conventional
law of nations is full of instances of this kind, and several of them
were stated by Sir William Scott in the opinion which he gave in the
case of the Fama.
Kent, vol. I, p. 191; The Fama, 5 C. Rob. 106.
A treaty of peace binds the contracting parties from the moment of
its conclusion, unless otherwise, provided in the treaty itself. Hence,
all hostilities are to cease from the time that the belligerent powers are
restored to the normal relations of peace, and no rights of war can be
subsequently acquired, or, (properly speaking,) exercised, by the
parties to the treaty. It also follows, that if territory be ceded by
such treaty, the ceding sovereignty can exercise no authority in the
ceded territory, after the conclusion of the treaty, except for municipal
purposes, and any grants of land, or of franchises to be enjoyed in the
territory so ceded, are utterly null and void. But when is the treaty to
be considered as concluded, (in the absence of any stipulation on this
point,) at the time of its signature, or of its ratification? Upon this
question, there is some difference of opinion, although the weight of
authority is, that no public treaty begins to operate till it has passed
through all the necessary forms and been ratified. It may have a
retroactive effect, and relate back to the time of signing, if so provided
in the treaty itself, but not otherwise; so, also, the time when it begins
to operate may be postponed to a date subsequent to its ratification but
not unless it is so specially provided in the treaty. But the act of
ratification may operate with retrospective effect, to confirm the treaty
according to the terms of its provisions. (Wheaton, Elem. Int. Lau,
pt. 4, ch. 4, $ 5; Kent, Com. on Am. Law, vol. 1, p. 170; Tattel, Droit
des Gens, lib. 3, $$ 24, 25; Rayneval, Inst. du Droit de la Nat. et des
Gens, tome 2, p. 113; Phillimore, On Int. Law, vol. 3, § 517; Wildman,
Int. Law, vol. 1, pp. 145, et seq.; Grotius, de Jur. Bel. ac Pac., liv. 3,
712
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
chs. 20, 21; Pando, Derecho Pub. Int., p. 583; Hylton v. Brown, 1
Wash. Rep., p. 312; Baine, et al. v. Schooner Speedwell, 2 Dallas Rep.,
p. 40; The United States v. Reynes, 9 Howard Rep., p. 127; Davis v.
The Police Jury, etc., 9 Howard Rep., p. 280; The Elsebe, 5 Rob. Rep.,
p. 189; The Eliza Ann, 1 Dod. Rep., p. 244; Riquelme, Derecho Pub.
Int., lib. 1. tit. 1, cap. 13; Bello, Derecho Internacional, pt. 2, cap. 9,
$ 6; Heffter, Droit Internacional, § 183; Pistoye et Duverdy, des
Prises, tit. 3, ch. 3.)
Halleck, p. 855.
1
1
Notwithstanding that treaties only become definitely binding on
the states between which they are made on being ratified, a treaty of
peace, whether it be in the form of a definitive treaty or of prelimi-
naries of peace, is so far temporarily binding from the date of signa-
ture, unless some other date for the commencement of its operation is
fixed by the treaty itself, that hostilities must immediately cease. It
acts as an armistice, if no separate armistice is concluded. The rule
is obviously founded on the fact that the chance in any given case that
ratification will be refused is not sufficient to justify fresh attempts
on the part of either belligerent to secure a better position for him-
self at the cost of effusion of blood, and of infliction of misery on the
population inhabiting the seat of war.
The exceptional case that a future date is fixed by a treaty for the
commencement of peace occurs when hostilities extend to regions with
which immediate communication is impossible. Under such circum-
stances it is usual to make the termination of hostilities depend upon
the length of time necessary for sending information that a treaty has
been concluded, and to fix accordingly different dates after which
acts of war become illegal in different places. When in such cases duly
authenticated information reaches a given place before the time fixed
for the cessation of hostilities, the question arises whether further
hostilities are legitimate, or whether, as a margin of time is only
given in order that knowledge may be obtained, they ought at
once to be stopped. The latter and reasonable doctrine seems
now to be thoroughly accepted in principle; but its value is some-
what diminished by the reservation, which is perhaps necessarily
made, that a naval or military commander is not obliged to accept any
information as duly authenticated, the correctness of which is not in
some way attested by his own government. In the case of the English
ship Swineherd, for example, a vessel provided with letters of marque
sailed from Calcutta for England before the end of the period of five
months fixed by the treaty of Amiens for the termination of hostili-
ties in the Indian seas, but after the news of peace had reached Cal-
cutta, and after a proclamation of George III, requiring his subjects
to abstain from hostilities from the time fixed, and therein mentioned,
TAKING EFFECT OF PEACE TREATIES.
713
had been published in a Calcutta paper. The Swineherd had a copy
of this proclamation on board. She was captured by the Bellone, a
French privateer, without resistance, there being only enough powder
on board for signalling purposes. The Bellone had been informed
by a Portuguese vessel bearing a flag of truce which had put into the
Mauritius, by an Arab vessel, and by an English vessel which she
had captured, that peace was concluded; her commander was shown
the proclamation in the Gazette extraordinary of Calcutta, and he
could see for himself that a privateer, which by the date of the Gazette
must have sailed lately from Calcutta, was without powder; so that
there was no room to doubt the accuracy of the information given or
the good faith of the statement that the intentions of the Swineherd
herself were peaceful. The vessel was nevertheless condemned in
France as good prize. In a case like this, in which the fact that peace
had been concluded was established beyond all possibility of ques-
tion, the rule that an officer in command of armed forces of his state
may disregard all information which is not authenticated by his own
government, operates with extreme harshness; and though the right
of seizure could scarcely be abandoned, there seems to be no reason
for not subsequently restoring ships captured after receipt of infor-
mation which should turn out in the end to be correct. For most
purposes of war however the rule must be a hard and fast one. The
consequences of suspending hostilities upon erroneous information
might easily be serious, and if it were once conceded that commanders
were ever bound to act upon information not proceeding from their
own government, it would be difficult to prevent them from being
sometimes misled by information intentionally deceptive.
Hall, pp. 581-583.
Preliminary agreement.
Sometimes the general basis on which the two parties will consent
to be at peace is laid down long before the details are arranged. The
first agreements are called preliminaries, and a peace at this stage is a
preliminary peace in contrast with the definitive peace. Thė pre-
liminary peace is binding from the time it is signed, although its
provisions may be altered, by mutual consent, before the final nego-
tiations are completed.
As examples of such preliminary treaties, we may mention the
treaty of Vienna, in 1735; the peace of Breslau, of June 11, 1742;
that of Aix-la-Chapelle, of April 30, 1748; that of Paris, between
England and the United States, November 30, 1782; and that of Ver-
sailles, between Great Britain on the one part, and France and Spain
on the other, January 20, 1783.
Woolsey, pp. 260, 261.
110678-19—--46
714
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A treaty of peace begins to bind the parties when it is signed.
(Comp. $ 111), and to bind individuals of the two belligerent nations
when they are notified of its existence. (Comp. § 157.) Injuries
done meanwhile must be made good by the state to which the person
committing the injury belongs.
Woolsey, p. 266.
A treaty of peace, after signature, but before ratification, operates
as a general armistice.
Holland, p. 51.
With regard to the date of the treaty of peace, it is necessary to
make certain important distinctions, which writers on international
law, in their scanty references to the question, neglect. · In the first
place, the expression “the date of the treaty of peace," may mean the
date that appears on the instrument, indicating when it was signed
by the contracting parties. Here the date simply shows when the
(on pensus ad idem was definitely arrived at, and the terms of agree-
ment have become positive and unalterable. It does not necessarily
show when such terms, or any of them, begin to operate. Secondly,
the said expression may mean the day on which hostilities cease and
peaceful relations are re-established, without regard to the date on
which the substantive clauses of the treaty come into effect. Thirdly,
it may signify the date of the operation of the treaty as a whole, and
the point of departure whence begins the new status or position of the
States—as provided by the terms agreed upon-in relation to each
other as well as to third parties. Whether peace begins with the
signing, whether a provision that hostilities should cease on signing
refers to that very date or to the date of the receipt of notice by the
armed forces, whether the exchange of ratifications has a retroactive
effect-on these and on other relevant questions international law is
silent; and previous practice does not furnish any uniform rules.
Regard must, therefore, be had to the circumstances of each case, to
the intention, express or implied, of the parties, and to considerations
of reason and common sense.
As to the cessation of hostilities, we have already seen, in our discus-
sion of armistice conventions, that frequently arrangements are made
for a general suspension of arms by the belligerents with a view to
entering on peace negotiations, or-when the preliminary terms have
been settled—with a view to the meeting of plenipotentiaries for
drawing up the definitive treaty. Sometimes the preliminaries re-
quire certain guarantees that some or other of the fundamental condi-
tions of the preliminaries of peace will be performed with complete
certainty. If these guarantees are given, then the armistice previ-
ously established, or to be established forthwith, as the case may be,
TAKING EFFECT OF PEACE TREATIES.
715
comes to be regarded as the final cessation of hostilities, and the oppos-
ing armies may be withdrawn from their positions, subject to the
maintenance of a sufficient force in or near the one country or the other
for the purpose of ensuring the fulfillment of certain fundamental
conditions. We find, accordingly, that some treaties say nothing as to
the date of the commencement of peace, or even of the operations of
the articles in general. Such is the case, for example, with the Pre-
liminaries of Versailles, February 26, 1871, the Treaty of Frankfort,
May 10, 1871—where the suspension of arms was effected by the con-
vention signed at Versailles, January 28—and the Treaty of Paris,
December 10, 1898, between the United States and Spain—where the
protocol signed at Washington, August 12, provided for the general
suspension of hostilities. In these cases there is not a single word
referring, even in an indefinite sense, to the commencement of peace.
Other treaties, again, whilst mentioning no specific date, simply say-
because an armistice has been or is to be immediately or subsequently
concluded—that there shall exist peace (as in the Treaty of Lima,
June 12, 1883, between Spain and Chile, Art. I: “ The past shall be
consigned to oblivion, and there shall exist a solid and inviolable
peace. "), or that there shall be in future peace and friendship
(as in the Treaty of Zurich, November 10, 1859, between France and
Austria, Art. 1), or “there shall be peace and friendship ... hence-
forth ..." (as in the Treaty of Prague, August 23, 1866, between
Austria and Prussia, Art. 1; and, in equivalent terms, in the Treaty of
Portsmouth, September 5, 1905, between Russia and Japan, Art. 1).
What is the meaning of such expressions as“ henceforth,” “ in future,
etc.? Obviously their application is relative to the date of the docu-
ments in which they respectively appear; so that if arms have not
been suspended by some other arrangement, they are deemed to be
suspended there and then. But this is not the inevitable result, simple
and natural as it seems to be. For in the notable Treaty of Ports-
mouth the expression “ henceforth” occurs, and yet open hostilities
between the Russian and the Japanese forces went on vigorously for
some time after the signature of the treaty. It was, indeed, on Sep-
tember 1 that the plenipotentiaries signed an armistice protocol at
Portsmouth, wherein it was stipulated that orders should be given to
their respective commanders to put it into execution immediately
after the signature of the treaty of peace. The latter was signed on
September 5; but it was not until September 13 that the military com-
missioners of the belligerents met and signed a military armistice,
which was to take effect on the 16th, and it was not till September 18
that the naval armistice was signed and came into operation. It would
appear that in this case the date of the exchange of ratifications (viz.
September 25) was taken as furnishing the essential point of de-
parture. That was clearly understood by the negotiators. But they
>>
716
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
must also have considered the date of signing the treaty of peace to be
a material date, seeing that they agreed to communicate to their forces,
immediately after this signing, the armistice protocol drawn up pre-
viously. That a great length of time elapsed before hostilities were
brought to a stop is unfortunate, but the main point to bear in mind is
that had the negotiators been able to cause the warlike operations to
cease the moment they affixed their signatures to the peace treaty,
they would undoubtedly have done so—unless they were fully con-
vinced that the treaty would not be ratified if arms were suspended.
In other words, they must have realized that all considerations of rea-
son and logic and even political prudence demanded the cessation of
hostilities—not necessarily the withdrawal or demobilization of the
armed forces—as soon as the definitive, invariable treaty of peace was
concluded and signed.
Here we must refer to a case-The Eliza Ann-decided a century
ago by Lord Stowell, who held that the expression “dès ce moment":
in the Treaty of Orebro, July 18, 1812, between Great Britain and
Sweden, referred to the date of subsequent ratification and not to that
of the signature; and consequently that vessels seized before the ex-
change of ratifications were good prize. “It is said," he observed,
“that the treaty when ratified refers back to the time of its signature
by the plenipotentiaries, and that it does so in this case more especially
on account of the terms in which it is drawn. The words in one of the
articles of the treaty__“Dès ce moment tout sujet de mésintelligence
qui ait pu subsister sera regardé comme entièrement cessant et
détruit”-have been pointed out, and from these it has been contended
that all hostilities were to cease the moment the treaty was signed.
But I take that not to be the case; the positive and enacting part of the
article is that there shall be a firm and inviolable peace between the
two countries; the other part is descriptive only of the pacific inten
tion of the parties, and of their agreement to bury in oblivion all the
causes of the war. It does not stand in the same substantive way as
the former part of the article, and must be considered as mere ex-
planatory description.” He concluded that, in his opinion, “the
ratification is the point from which the treaty must take effect. “Dès
ce moment' must be referred to the moment at which the treaty re-
ceived its valid existence by mutual ratification.”i This reasoning
is by no means conclusive. We find, moreover, that in an earlier case,
The Elsebe,2 the same judge said that “in matters of treaty ... the
act of ratification may be said to operate with retrospective effect, to
confirm the terms of the treaty from the date of the preliminary
articles.” This pronouncement is hardly compatible with the observa-
tions given above. If ratification operates retroactively to confirm the
1 The Eliza Ann, 1 Dod. 244, 248–250.
2 5 C. Rob. 174, 190.
TAKING EFFECT OF PEACE TREATIES.
717
treaty from the date of the preliminaries, it must also do so from the
date of signature in respecu of hostile acts.
If no provision has been made otherwise either by an armistice
convention or by a clause in the preliminaries or the treaty of peace-
then hostilities should entirely cease with the signing of the definitive
treaty; and the exchange of ratifications would therefore have, in
this respect, a retroactive effect. This is not an established principle
of international law; but, it is submitted, it is fully worthy of be-
coming one on the ground of reason and expediency. The vital date,
so far as the whole of the relationships of the parties are concerned, is,
it is true, that of the exchange of ratifications; but the latest date
for ceasing hostilities should be that of the signing of the definitive
treaty, unless a different agreement has been expressly made by the
parties for their own good reasons. Once the definitive treaty is con-
cluded and signed, its provisions can no longer be altered; so that
there cannot be any justifiable motive for continuing the war. When
a belligerent is determined to continue warlike operations after his
adversary has begun peace negotiations, his only reason can be that
he is anxious to gain such military successes in the meantime as will
enable him to demand better terms. But after he has come to an
agreement upon them, and signified his assent by adding his signature
and seal, the resolve to go on with the war till the date of ratification
means useless butchery, as well as indefensible waste of treasure and
destruction of property. Indeed, it would be more in accordance with
juridical considerations, and the dictates of humanity, to put a stop
to the war-to suspend it, at least, if not to withdraw the armies from
their positions—as soon as the plenipotentiaries of both sides have
met in conference to negotiate the terms of peace. However, whatever
reasons may be urged—and no doubt in certain circumstances strong
ones might well be advanced-against the adoption of the latter prac-
tice as an invariable rule, it is difficult to see what reasons can be
brought forward that are strong enough to entitle any belligerent .
to continue his hostilities after the definitive treaty of peace has been
concluded. Does he imagine that the other side is insincere in its
desire for peace, that it will not eventually ratify the treaty, and that
it is utilizing the period between the conclusion of the treaty and
its ratification in making further military preparations with a view
to offering more effective resistance, or making a renewed onslaught
in the hope of reversing the situation? The records of history show
that an assumption of this kind is unwarranted. There are very
few treaties indeed which were not ultimately ratified. Moreover,
why assume that ratification is an unfailing protection against such
ulterior designs? If a successful belligerent, after having secured
satisfactory terms in the definitive treaty of peace, cannot trust the
pledged word of the other contracting party, he need not demobilize
718
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
his forces till the date of ratification; and he can easily insist on an
early ratification, so as not to prolong unduly his state of doubt and
suspicion. But if he io oonvinced that his only safeguard is to prose-
cute hostilities till the very last moment, then it is difficult to see how
he can become really satisfied, unless he has completely annihilated
his enemy—that is, until he has made peace negotiations impossible
altogether.
With regard to the effect of the signature in putting an end to
hostilities, we may recall an interesting case that came before the
French Prize Court. The Treaty of Lunéville, between France and
Austria, was signed on February 9, 1801, and was ratified March
16, 1801. Now on March 8-after the signature, but before the
ratification—the Thétis, an Austrian vessel, was captured by the
French, and brought up for adjudication. The court ordered the
restoration of the vessel and cargo, on the ground that at the time
of capture France was at peace with Austria, as a result of the con-
clusion of the Treaty of Lunéville. To say that there could be no
performance of the treaty, observed the court, because it was not
yet ratified, was to advance a ridiculous proposition, which was
repugnant to policy and good sense alike. The plea of ignorance
could scarcely be brought forward so long after the peace was signed;
but if the captor proved that he was really unaware of the con-
clusion of the treaty at the time of capture, his good faith would
protect him personally from liability to pay damages, but it would
not render the capture valid.1
It follows from the above observations that in case the definitive
treaty or the preliminaries, as the case may be, be not ratified by
the time fixed in the instrument, hostilities may then justifiably
be recommenced; so that what was provisionally a definitive treaty
of peace has turned out to be little more than an armistice convention.
If the date of the signing of a certain agreement is contemplated
as the date on which hostilities are to cease, then it is obviously much
simpler and much better in every respect to insert in it a clause to
that effect. Even then disputes and difficulties are not obviated
unless the understanding on the point is made perfectly explicit.
Take, for example, Art. VI of the preliminaries—the “protocol of
peace”_signed at Washington; August 12, 1898, by the United
States and Spain:“ Upon the conclusion and signing of this protocol,
hostilities between the two countries shall be suspended, and notice
to that effect shall be given as soon as possible by each Govern-
ment to the commanders of its military and naval forces.” It is evi-
dent that this article is not as clear and as free from doubt as it
might easily have been made. The first part of it would seem to
1 Pistoye et Duverdy, vol. 1, pp. 148, 149.
TAKING EFFECT OF PEACE TREATIES.
719
imply that warlike operations were to cease ipso facto on the sign-
ing, whilst the latter part implied undoubtedly that the real date
of the cessation was that on which the respective commanders re-
ceived notice. The forces engaged in conflict were at a consider-
able distance from Washington, where the protocol was con-
cluded, so that, despite telegraphic convenience, some time would
inevitably elapse before due notice could be received by the com-
manding officers of the naval and military forces operating in dif-
ferent spheres. Accordingly, the second part of the article must
be held to prevail. But it would have been better to specify a date
or a definite period, as is usually done in such agreements; for ex-
ample, the armistice convention of January 28, 1871, in the Franco-
German War, stipulated that military operations were to cease on
the date of signature in Paris, and within three days thereafter in
the departments. An undertaking to communicate the notice to
the forces “as soon as possible" is eminently unsatisfactory, for
the phrase might be interpreted to cover negligences and even de-
liberate delays. It is more customary and more regular to promise
to communicate such notice immediately.
The above-mentioned Art. VI subsequently gave rise to some con-
troversy between the American and the Spanish Governments. It
appears that, notwithstanding the vague phrase in it, the United
States despatched notice immediately to her forces. This was pre-
sumably on August 12. On August 14, however, before the notice
arrived, Manila was compelled to capitulate to the American forces.
Now Art. III of the protocol of peace said that pending the conclu-
sion of a definitive treaty the United States was to occupy and
hold Manila with its bay and harbour. Thus two different meas-
ures-one depending on the force of arms, the other on the force of
an agreement-empowered the United States to hold Manila. After-
wards, when peace negotiations had begun, the Spanish Govern-
ment contended that the occupation of Manila was due entirely to
the agreement, and not to the capitulation-on the ground that the
latter was null, as it had occurred after the signing of the protocol,
which had stipulated a suspension of hostilities. In reply the Ameri-
can Government held-and rightly so—that as the protocol had made
express provision for the giving of the notice, the suspension of arms
took effect" at the date of the receipt of the notice"; and it instructed
its plenipotentiaries at the Paris Conference that Manila and its
suburbs were held “by conquest as well as by virtue of the protocol,”
so that the demand of the Spanish representatives to restore im-
mediately the status quo on the date of the protocol was rejected.
Not infrequently-it ought to be invariably-clauses are inserted
in definitive treaties specifying the date of the commencement of
720
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
palce, as the regular and normal condition; and this, in spite of
the fact that hostilities may have practically, though conditionally,
been brought to an end by means of an armistice agreement, or
military convention, or by the preliminaries. We have already seen
that contracting parties regard their peace treaty as setting up a
provisional condition of affairs, until the date of ratification by the
competent authority, or, rather, until the date of the exchange of
ratifications. Accordingly, this is the date generally fixed in treaties
as that on which peace is to be considered definitely established.
Thus the Treaty of Paris, March 30, 1856, says (Art. I) that “from
the day of the exchange of ratifications of the present treaty there
shall be peace and friendship" between Great Britain, France, Sar-
dinia, and Turkey on the one side, and Russia on the other. The
Treaty of Vienna, October 3, 1866, also stipulates (Art. I) that
“there shall be, from the date of the exchange of the ratifications
of the present treaty, peace and friendship” between Italy and
Austria. Again, the Treaty of Shimonoseki, April 17, 1895, between
China and Japan, lays down (Art. X):“All offensive military opera-
tions shall cease upon 'the exchange of the ratifications of this act.”
The Treaty of London, May 30, 1913, between Turkey on the one part,
and Greece, Bulgaria, Serbia, and Montenegro on the other, says
(Art. I): “Upon the exchange of ratifications of the present treaty
there shall be peace and friendship” between all the States con-
cerned. Similarly, the Treaty of Bucharest, August 10, 1913, be-
tween Bulgaria on the one side, and Roumania, Greece, Serbia,
and Montenegro on the other, provides (Art. I): “From the day on
which the ratifications of the present treaty are exchanged there
shall be peace and amity” between the signatories.
Sometimes, when war is carried on in widely separated spheres,
and it is deemed impossible to notify immediately the various oppos-
ing forces of the conclusion of peace, a future date is fixed in the
treaty for the cessation of hostilities, if they have not already ceased
under another arrangement. This case differs from that of the above-
mentioned Protocol of Washington, in that a definite date is specified;
whereas the protocol did not fix the date, which was made to depend
on the commanding officer's receipt of the notification. The fixing
of a date obviously implies a guarantee that hostilities will be brought
to an end on or before that date, and that each State will therefore
be responsible for the hostile acts committed by its forces after that
date. Suppose, however, that a certain commander, who has heard
indirectly of the conclusion of peace, but who has not yet received
an official notice, continues hostilities before the date agreed upon
arrives. Are his acts legitimate? Remembering what the object
of fixing a future date is—viz. that the belligerent forces may have
an opportunity of learning that peace has been established by their
TAKING EFTECT OF PEACE TREATIES.
721
Governments—it is reasonable to conclude, with the majority of
jurists, that if a commander has received reliable information from
whatsoever source of the conclusion of peace, he is bound to abstain
from further hostilities. This, it is submitted, is only a general rule,
and must be taken subject to the qualification that he is not so bound
if his opposing forces, ignorant of the fact, continue their operations
to his or to his country's disadvantage. Of course, his duty would
be first to inform the enemy of the facts, and to continue fighting or
making captures only if the information thus imparted was not acted
upon. In other words, this latter contingency involves simply a
case of justifiable self-defence.
Apart from this contingency, then, the determining factor is the
question of knowledge. An interesting case furnished by the French
Prize Court is an excellent illustration of this principle. (One or
two writers of international law, however, have wrongly cited it as
illustrating the application of a contrary rule.) On October 2, 1801,
preliminaries of peace were concluded between England and France,
and provided that on ratification (which took place on October 11)
peace and friendship were to be established on land and sea, in all
parts of the world, and that conquests and captures were thereafter
to be invalid. Art. XI stipulated that prizes taken after the signing
of the preliminaries, within specified periods of time varying accord-
ing to locality between twelve days, and five months, should be
restored.
Both governments announced these provisions, the British by a
proclamation, the French by a decree, and issued orders to their
commanding officers to discontinue hostilities. On March 27, 1802,
the definitive treaty was signed at Amiens, Art. XVI reproducing
Art. XI of the preliminaries. Now before the expiration of the
five months an English vessel, The Swineherd (designated Le Porcher
in the French report), was captured by a French privateer, Bellone,
in the Indian Seas. Brought before the Conseil des Prises, the Court
asked the fundamental question : Did the captor, at the time of taking
the prize, possess sufficient knowledge of the establishment of peace?
The Court answered in the negative, and therefore condemned the
captured vessel as a good prize (April 22, 1803). What constitutes
sufficiency of knowledge was thus well expounded by the Procureur-
Général: “La connaissance dont il s'agit doit être certaine, assurée,
indubitable; elle doit émaner directernent ou immédiatement de la
puissance à laquelle appartient l'armateur, et si l'on veut, de l'une ou
de l'autre des puissances contractantes. Cette connaissance doit être
telle, qu'elle prévienne ou dissipe tous les doutes, toutes les incerti-
tudes, toutes les craintes, tous les dangers que pourrait courir le cor-
saire; elle doit, en même temps qu'elle paralyse les lettres de marque,
722
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
qu'elle impose au corsaire le devoir de s'abstenir de toutes hostilités,
le mettre lui-même à l'abri de la capture; elle doit enfin être transmise
par des pièces authentiques et légales qui prémunissent le corşaire
contre le danger, en se retirant dans un des ports de sa nation, d'être
pris par quelque navire ennemi non encore informé de la conclusion
de la paix. . Au moment de l'arrestation, la saisie est bonne, ou
elle est nulle, selon que le corsaire n'a point ou qu'il la connaissance
positive de la paix. S'il l'a, le navire doit être relâché avec dom-
mages intérêts; s'il ne l'a point, la saisie est valable, et la confisca-
tion doit être prononcée." Earlier in his argument the Procureur-
Général emphasized that it is not for the captor to prove his igno-
rance; rather, it is for the captured vessel to show that the seizure
was illegitimate. “... La présomption de la légalité de la saisie
doit être admise toutes les fois que l'arrestation a été faite avant
l'expiration des délais, sauf au capturé à prouver le contraire.
Obliger le capteur à prouver son ignorance, ce serait l'assujettir à
une preuve négative à laquelle il n'est pas tenu."1
Again, a few days later (April 25, 1803), the same Prize Court
heard the case of The Nymph, another English vessel that had been
captured by a French privateer, Petite Renommée. Here the cap-
ture was pronounced to be invalid, because it was proved that,
although it had been effected before the period fixed by the prelimi-
naries had expired, the captor had had sufficient knowledge of the
establishment of peace, which had indeed been communicated to him
by the British authorities. “Recevoir de notre ennemi la nouvelle de
la paix," said the French advocate-general, “et, par consequent, re-
cevoir en même temps l'assurance qu'il n'attaquera plus nos vais-
seaux, exige au moins de notre part une suspension d'hostilités offen-
sives; profiter de la sécurité qui lui inspire la communication qu'il
nous a donnée, pour faire enlever, soit à la mer, soit dans ses ports,
ses navires, et sabrer les hommes, qui les montent, est un acte de per-
fidie et de déloyaute qui ne convient qu'à des pirates et qui flétrirait
l'honneur du nom français, s'il demeurait impuni.”
Next we have to consider the date of operation of clauses other than
those relating to the cessation of hostilities. Here, as before, the
expressed intention of the parties is the determining principle. But
sometimes there is no express provision; then difficulties may arise
with regard to certain important clauses deemed to be urgent by the
one side or the other, according to the circumstances of each particular
For example, an article in a treaty of peace stipulates the ces-
sion of territory by one State to another. In the absence of a definite
provision or reasonable indications of intention, when does the ceding
State's sovereignty over the territory cease and the cessionary State's
2
case.
1 Pistoye et Duverdy, vol. 1, p. 152.
2 Ibid. vol. 1, p. 155.
TAKING EFFECT OF PEACE TREATIES.
723
begin? In some American judicial cases-e. g. Davis v. Police Jury
of Concordia? it has been held that the exercise of sovereignty on the
part of a ceding State terminates, except for purely municipal pur-
poses, on the date of the signature; but that the national character of
the acquiring State is not imposed for commercial matters until the
exchange of ratifications. The Court observed that a cessionary State
is not entitled to the plenum dominium et utile" over the ceded ter-
ritory, until it has possession together with the full right over it; and
such right can be conferred only by the ratification of the ceding State.
A similar decision was given in a case-Dooley v. U.S.—that arose in
connection with the settlement of the American-Spanish War. It was
there decided by a majority of the Supreme Court that duties on
imports from the United States to Porto Rico, collected by the Ameri-
can military authorities from the time of taking possession of the
island until the ratification of the Treaty of Paris (signed December
10, 1898) were legally exacted under war power; but the right to
exact duties so imposed came to an end when the ratifications were
exchanged. In other words, the United States and Porto Rico re-
mained foreign countries to each other until the date of the exchange
of ratifications (viz. April 12, 1899), notwithstanding that on the
one hand Spanish authority in the island was almost entirely replaced
by the American military occupation of it, and on the other that it
was ceded by the treaty of December 10.2
This solution of the question appears to be reasonable and prac-
ticable when the ceded territory is already under the military occu-
pation of the cessionary State. But where the territory ceded by a
treaty has not been subjected to military occupation, and remains free
from all control de facto and de jure on the part of the cessionary,
then, it is submitted, no element of sovereignty can vest in the latter
till the exchange of ratifications. For it is only on that date that the
competent authority signifies formally its full and irrevocable assent
to the stipulation agreed to by its plenipotentiaries and consigned to
the peace treaty.
In another American case Haver v. Yaker 3 a distinction is
drawn between the rights of the contracting Governments and those
of their subjects. In the course of his judgment, Mr. Justice Davis
observed that it is a principle of international law that a treaty be-
comes binding from the date of its signature, in so far as the rights of
either Government under it are concerned; and that the exchange of
ratifications has, in this respect, nothing more than a retroactive effect
confirming the treaty from its date. But in the case of individual
rights affected by the treaty, a different rule prevails. These rights
were vested before the treaty was ratified, and as regards them the
19 Howard, 289.
1182 U. S. 223.
39 Wallace, 32.
724
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
treaty cannot be considered as concluded and binding until the rati-
fications are exchanged. The learned judge, setting forth the reason
for the rule, pointed out that in the United States a treaty is some-
thing more than a contract-it is the law of the land. But before it
can become a law, the assent of the Senate, as the ratifying authority,
is necessary. Now the Senate is not called upon to adopt it or reject
it as a whole, but may modify it or amend it. In this process the
individual citizen's private rights may be affected; and as he has no
means of knowing the contemplated change while it is under con-
sideration of the Senate, it would be wrong in principle to hold him
bound by it, as the law of the land, until it was ratified and proclaimed.
And to construe the law, so as to make the ratification of the treaty
relate back to the date of the signature, thereby divesting a title
already vested, would be manifestly unjust, and cannot be sanctioned
by a court of law.
With regard to this judgment, we must, in conformity with our
previous arguments, deny the assertion that it is a principle of inter-
national law that a treaty acquires binding force from the date of its
signing, in respect of the rights of the contracting Governments.
Neither jurists and publicists nor Governments have ever uniformly
maintained such a principle; and it certainly cannot be inferred from
actual practice. The reasoning that the exchange of ratifications
alone gives the date from which the treaty becomes obligatory in re-
spect of individual rights is forcible enough so far as it goes; but it is
difficult to see why such a sharp line of demarcation should be drawn
between the rights of Governments and the rights of subjects. What-
ever discrimination may be made between them for the purposes of
formal or abstract analysis, it cannot properly be made in the actual
practice of any civilized community. The rights of Governments
have really no existence save in relation to the rights of the governed.
A Government has no meaning whatever without subjects to be gov-
erned. What affects the one must necessarily affect the other. A
Government divesting itself of its inherent rights deprives subjects
of their rights too. So that if the exchange of ratifications is neces-
sary before the rights of subjects, whether property rights or any
other kind of rights, can be affected, equally necessary is the exchange
of ratifications before the rights of Governments can be affected.
Sometimes certain, or even all, of the clauses in a treaty of peace are
executed or brought into operation, owing to conditions of exceptional
urgency, before the date of the exchange of ratifications. But such
a proceeding is adopted in virtue of an express provision, based on
mutual consent, whereby ratification of the said clauses is presumed
or implied by guarantee or waived. For example, in the case of
the Convention of Madrid, July 3, 1880, relating to the exercise of
protection in Morocco, the contracting parties (viz. Great Britain,
TAKING EFFECT OF PEACE TREATIES.
725
France, Germany, Austria, Italy, Spain, United States, the Nether-
lands, Portugal, Sweden and Norway, Denmark, Belgium, and
Morocco) expressly agreed (Art. XVIII) that the provisions should
come into effect on the date of the signature. Similarly, in the case
of the Treaty of London, July 15, 1840, between Great Britain,
Austria, Prussia, Russia, and Turkey, for the pacification of the
Levant, a reserved protocol was annexed, in which it was stated that,
owing to the distance which separated the capitals of the contracting
Courts from each other, and in view of the interests of humanity
and the grave considerations of European policy relative to the
existing state of affairs in Syria, the signatories agreed to carry into
immediate execution the measures mentioned in Art. II of the treaty,
without waiting for the exchange of ratifications (which was dis-
pensed with by the negotiators under secret instructions).
Apart from exceptional circumstances, however—e. g. the continu-
ance of military occupation, and other conditions of an urgent char-
acter—the normal course is to prescribe in the treaty itself the date
of its operation in general. Sometimes it is the date of the signing,
at other times it is the date of the exchange of ratifications; whichever
is fixed depends on the nature of each particular case and on the
purpose and motives of the parties concerned. Examples of the
former are: the Treaty of Lausanne, October 18, 1912, between Italy
and Turkey, Art. XI: “ The present treaty shall come into force
immediately after its signature"; the Treaty of Constantinople,
September 29, 1913, between Turkey and Bulgaria, Art. XX: “The
present treaty shall come into force immediately after its signa-
ture"; the Treaty of Athens, November 14, 1913, between Turkey
and Greece, Art. XVI: “ The present treaty shall become effec-
tive immediately upon its signature." Examples of the latter are:
the Treaty of Ghent, December 24, 1814, between Great Britain
and the United States, Art. XI: “ This treaty, when the same shall
have been ratified on both sides without alteration by either of
the contracting parties, and the ratifications mutually exchanged,
shall be binding on both parties”; the Preliminaries of San Stefano,
March 3, 1878, between Russia and Turkey, Art XXIV: “It is well
understood that the high contracting parties consider themselves as
formally bound by the present Act from the moment of its ratifica-
tion"; the Treaty of Portsmouth, September 5, 1905, between Russia
and Japan, of which Art. XIV says that the treaty “shall in all its
parts come into full force” on the date of the announcement of the
ratifications by the two parties, and in case of different dates on the
later one.
Finally, if no other date has been specified, the treaty comes into
effect and acquires binding force on the date of the exchange of
ratifications. This rule is accepted by most publicists and jurists since
726
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Vattel. Bluntschli emphasizes that it is the exchange of ratifications
that renders the treaty perfect, and entitles each party to demand its
performance by the other. Heffter maintains that without due ratifi-
cation the treaty has no existence; hence the date of operation begins
from the exchange of ratifications. Similarly, Phillimore holds that
the treaty begins to take effect only after all necessary formalities have
been fulfilled and the agreement has been ratified. Bernard, referring
to this principle, observes: " It [the exchange of ratifications] is an
extra precaution, an artificial safeguard, against improvident or ill-
considered engagements. That it is salutary and convenient is
an opinion-sound, I have no doubt, but which may be disputed like
any other opinion; that it is a settled rule is a fact which may be
proved by evidence like any other fact."1 There can be no doubt, how-
ever, that modern usage has established the rule; and, it is submitted,
it may now be considered a fundamental principle of international
law. Generally a condition of subsequent ratification is inserted in
the full powers of plenipotentiaries or in the treaty concluded by
them; and when not so inserted, it is implied, that is, of course, if it
is not expressly dispensed with by the competent authorities (e. g.
by previously sanctioning the very terms arrived at)-a proviso that
applies to the entire sphere of treaty-making.
Phillipson, Termination of War and Treaties of Peace, pp. 185–198.
Armistice and peace.
The effect of an armistice was touched upon by Lieber, umpire,
in the Torres case (Moore, 3801), he remarking that "suspensions of
hostilities, armistices, even the mere mitigation of energetic hostili-
ties, are no spontaneous acts, like the efforts or suspensions of activi-
ties of nature. Orders to such effects must be given. No officer or
soldier can act on hearsay or rumor.” In the same opinion, after
discussing the nature of the particular acts complained of, he ex-
pressed himself as follows:
Hostilities frequently cease, but by no means always, when com-
missioners of the belligerents meet to treat about a peace to be con-
cluded. How is it, however, when a treaty of peace has been signed,
but has not yet been ratified ? Many of the best authorities hold that
peace begins de jure when it is signed, and not from the day when it
is ratified by the two supreme belligerent powers or the authorities
which by the law of the land have alone the right to ratify. This,
however, is far from being unconditional. If a peace were signed
with a moral certainty of its ratification and one of the belligerents
were, after this, making grants of land in a province which is to be
ceded, before the final ratification, it would certainly be considered
by every honest jurist a fraudulent and invalid transaction. But it
1 Four Lectures. :
on Diplomacy, p. 173.
TAKING EFFECT OF PEACE TREATIES.
727
is well understood that a peace is not a complete peace until ratified;
that, as a matter of course, the ratifying authority has the power
of refusing unless, for that time, it has given up this power before-
hand, but there can be no doubt that so soon as peace has been pre-
liminarily signed active hostilities ought to cease, according to the
spirit of civilization and consistent with the very idea and object
of the whole transaction, which is to stop the war and establish peace.
It would be an unjustifiable act to continue vehement hostilities under
such circumstances as if nothing had happened, wherever it is pos-
sible, and when the contrary is not plainly understood or actually
expressed.
Ralston, p. 299.
Unless the treaty provides otherwise, peace commences with the
signing of the peace treaty. Should the latter not be ratified, hostili-
ties may be recommended, and the unratified peace treaty is considered
as an armistice. Sometimes, however, the peace treaty fixes a future
date for the commencement of peace, stipulating that hostilities must
cease on a certain future day. This is the case when war is waged
in several or widely separated parts of the world, and when, therefore,
it is impossible at once to inform the opposing forces of the con-
clusion of peace. It may even occur that different dates are stipu-
lated for the termination of hostilities in different parts of the world.
Oppenheim, vol. 2, pp. 331, 332.
Ratification is effected by an exchange of instruments embodying
the ratification between the supreme treaty-making powers of the
respective States. But once a treaty has been duly ratified, then its
provisions will, in default of agreement to the contrary, operate, at
any rate on the public rights of either party, as from the date of the
original signature; although in cases where a treaty requires ratifica-
tion by the Legislature it will not, apparently, have any retroactive
effect on private rights.
Cobbett, pt. I, p. 321.
,
“You maintain, however, that when this seizure took place the war
was over. ' Undoubtedly the Confederate army of the Transmissis-
sippi Department had surrendered; but I have yet to learn that a war
in which the belligerents, as was the case with the late civil war, are
persistent and determined, can be said to have closed until peace is
conclusively established, either by treaty, when the war is foreign, or,
when civil, by proclamation of the termination of hostilities on one
side and the acceptance of such proclamation on the other. The sur-
render of the main armies of one of the belligerents does not of itself
work such termination; nor does such surrender, under the law of
nations, of itself end the conqueror's right to seize and sequestrate
2
728 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
whatever property he may find which his antagonist could use for a
renewal of hostilities. The seizure of such property, and eminently so
when, as in the present case, it is notoriously part of the war capital of
the defeated government, is an act not merely of policy and right, but
of mercy, in proportion to the extent to which the party overthrown is
composed of high-spirited men, who are ready to submit only when
their military resources are wholly exhausted, and not until then.
This, in the summer of 1865, was the condition of things in the South-
ern and Southwestern States of this nation. The period was one in
which the maintenance of military rule, and the taking into the posses-
sion of the United States of all the property capable of use as military
resources of those States, was essential to the permanent restoration
of order, peace, and a common municipal law. This was so from the
nature of things, and such was the course of public action. It is in
accordance with this principle that the Supreme Court of the United
States has formally decided that the late civil war terminated in the
particular sections of the United States at the periods designated in
the proclamations of the President of the United States. (Brown vs.
Hiatts, 15 Wall., 177; Adger vs. Alston, ibid., 555; Batesville Insti-
tute vs. Kauffman, 18 Wall., 151.) And by the President's proclama-
tion of April 2, 1866, 'the insurrection which heretofore existed in
the States of Georgia, South Carolina, Virginia, North Carolina,
Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida
is at an end, and is henceforth to be so regarded. Up to and before
that date the insurrection in those States was held to exist. After
that date it was held to be at an end."
Foreign Relations, 1887, p. 1019; Mr. Bayard to Mr. de Muruaga, Decem-
ber 3, 1886.
A treaty is binding on the contracting parties, unless otherwise
provided, from the date of its signature, the exchange of ratifications
having, in such case, a retroactive effect, confirming the treaty from
that date.
Moore's Digest, vol. V, p. 244; Davis v. Concordia, 9 How. 280; Hylton
V. Brown, 1 Wash. C. C. 343; Davis, Notes, U. S. Treaty Vol. (1776–
1887), 1228; Mr. Buchanan, Sec. of State, to Mr. Clay, min. to Peru,
Sept. 18, 1847, MS. Inst. Peru, XV. 56, citing Wheaton's Int. Law, 306.
See, as to the treaty with France of Feb. 23, 1853, Succession of Schaffer,
13 La. An. 113, cited in Hennen's La. Dig. (1861), 1545.
The treaty by which France ceded Louisiana to the United States
took effect from its date, April 30, 1803. Its subsequent ratification
and the formal transfer of possession have relation to that date. The
same rule applies to the treaty of San Ildefonso, Oct. 1, 1800, by
which France acquired Louisiana from Spain.
Moore's Digest, vol. V, p. 244; United States v. Reynes, 9 How. 127;
Davis v. Concordia, id. 280.
TAKING EFFECT OF PEACE TREATIES.
729
So far as it affects the relations of the sovereigns concerned, a
treaty when ratified operates from the day of its signature. Hence,
although the ratifications of the treaty of peace between the United
States and Spain, which was signed December 10, 1898, were not ex-
changed till April 11, 1899, it was held that sec. 10 of the act of March
3, 1899 (30 Stat. 1151), prohibiting unauthorized obstructions to
navigation in the waters of the United States, applied to the navi-
gable waters of Porto Rico. It was observed that, while certain pro-
visions of the treaty became operative from the date of the exchange
of ratifications and others (as Arts. IV and VI) upon signature,
“the relinquishment of sovereignty and cession of domain, which
were the main purposes of the treaty, and were formulated in several
articles, are unqualified and must be regarded as immediate and abso-
lute from the date of signature, subject only to the possibility of a
failure of ratification. It is impossible to suppose that the sov-
ereignty of the United States in its full scope did not attach at once
or was suspended until ratification should be complete."
Moore's Digest, vol. V, p. 244; Knox, At. Gen., Oct. 17, 1901, 551, 558,
citing United States v. Arredondo, 6 Pet. 691; Haver v. Yaker, 9
Wall. 321; United States v. Reynes 9 How. 127; Davis v. Concordia,
9 How. 280; De Lima v. Bidwell, 182 U. S. 1, 200; Downes v. Bidwell,
182 U. S. 244, 287; Dooley v. United States, 182 U. S. 222, 230; Hal-
leck, Int. Law (1861), 815, and discussing Halleck, Int. Law (1861)..
855.
The Attorney-General, referring to Halleck, Int. Law (1861), 831, said:
“ It is difficult to conceive that so far as matters of sovereign domin-
ion are concerned there is any break of continuity between the cessa-
tion of hostilities and the negotiation of a treaty of cession, or be-
tween negotiation and ratification; and if ratification is followed by
legislation respecting the acquired territory, which fully emphasizes
the assumption of the new duties and rights of sovereignty, I can
conceive no valid reason for doubting that this sovereignty extends
over all the usual public phases thereof, including the jurisdiction
over public waters, from the moment when hostilities resulted in
military control of the acquired territory." (23 Op. 566-557.)
The States of New Granada, Ecuador, and Venezuela, formerly con-
stituting the original Republic of Colombia, established by treaty a
board of commissioners to hear and determine claims against that Re-
public and to fix the proportion due thereon from each of such States.
The commissioners rejected a claim presented by a citizen of the
United States on the ground that the capture, out of which the claim
grew, took place a few days before the exchange of the ratifications
of the treaty between the United States and Colombia, by which it
was stipulated that free ships should make free goods. The Depart-
ment of State said that this objection was fully answered by the
statement “that, although the treaty stipulates that certain of its parts
are to remain in force twelve years from the exchange of the ratifica-
110678—1947
1
730
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tions, this is by no means tantamount to saying that it was not to be
operative until that exchange should have been effected. The treaty
had been ratified by both parties before the capture, and as the ex-
change of the ratifications is a mere ceremony, intended only to fur-
nish each party with formal proof of the ratification of the other,
no doubt is entertained of our right to insist upon the application of
the treaty to any case that might have occurred under it subsequently
to its ratification by Colombia.”
Moore's Digest, vol. V, p. 245; Mr. Forsyth, Sec. of State, to Mr.
Semple, chargé d'affaires to New Granada, No. 7, Feb. 12, 1839, MS.
Inst. Colombia, XV. 58.
“But a different rule prevails when the treaty operates on indi-
vidual rights. The principle of relation does not apply to rights of
th character, which were vested before the treaty was ratified; it is
not considered as concluded until there is an exchange of ratifica-
tions."
Moore's Digest, vol. V, p. 245; Davis, Notes, U. S. Treaty Vol. (1776–
1887), 1228, citing Davis v. Concordia, 9 How. 280; Lessee of Hylton v.
Brown, 1 Wash. C. C. 343; Haver v. Yaker, 9 Wall. 32; United States
V. Arredondo, 6 Pet. 691.
See, to the same effect, ex parte Ortiz, 100 Fed. Rep. 955; Bush v. United
States, 29 Ct. Cl. 144.
See Montault v. United States, 12 Howard, 47.
The rule that treaties, where individual rights are concerned, take
effect not on the date of their signature, but on that of the exchange of
ratifications, was held to be applicable to the exaction of duties on
merchandise, in the case of the annexation of Porto Rico by the United
States under the treaty with Spain, signed at Paris, Dec. 10, 1898, the
ratifications of which were exchanged on April 11, 1899.
Moore's Digest, vol. V, pp. 245, 246 ; Dooley v. United States (1901),
182 U. S. 222, citing Haver v. Yaker, 9 Wall. 32.
See also, Armstrong v. Bidwell (1903), 124 Fed. Rep 690.
“When a treaty requires a series of legislative enactments to take
place after exchange of ratifications before it can become operative, it
will take effect as a national compact, on its being proclaimed, but it
cannot become operative as to the particular engagements until all
the requisite legislation has taken place.”
Moore's Digest, vol. V, p. 246; Davis, Notes, U. S. Treaty Vol. (1776-
1887), 1228, citing Cushing, At. Gen., 6 Op. 750.
A treaty which does not require legislation to make it operative will
be executed by the courts from the time of its proclamation.
Moore's Digest, vol. V, p. 246; Cushing, At. Gen., 1854, 6 Op. 750;
Foster v. Neilson, 2 Pet. 314; United States v. Arredondo, 6 Pet. 725.
TAKING EFFECT OF PEACE TREATIES.
731
The United States adhered to the Industrial Property Convention,
“this adhesion to take effect internationally from the date of deposit
of their ratifications at Berne." See For. Rel. 1884, 548.
Moore's Digest, vol. V, p. 246; Mr. Bayard, Sec. of State, to Mr. Ervin,
April 26, 1887, 164 MS. Dom. Let. 12.
See, however, as to the need of legislation to give effect to this treaty,
supra, § 758.
Where an Indian treaty provided that it should be obligatory as
soon as it should be ratified by the President and the Senate, it did not
take effect until signed by the President, although it should have been
previously ratified by the Senate, and accepted by the Indians.
Moore's Digest, vol. V, p. 246; Shepard v. Northwestern Life Ins. Co.,
40 Fed. Rep. 341.
!
During the Revolutionary war various States, among which was
Virginia, passed acts of sequestration and confiscation, by which it
was provided that, if the American debtor should pay into the State
treasury the debt due to his British creditor, such payment should
constitute an effectual plea in bar to a subsequent action for the recov-
ery of the debt. When the representatives of the United States and
Great Britain met at Paris to negotiate for peace, the question of the
confiscated debts became a subject of controversy, especially in connec-
tion with that of the claims of the loyalists for the confiscation of
their estates. Franklin and Jay, though they did not advocate the
policy of confiscating debts, hesitated, chiefly on the ground of a want
of authority in the existing national government to override the acts
of the States. John Adams, however, when he arrived on the scene,
took high national ground, and ended the discussion by declaring, in
the presence of the British plenipotentiaries, that, so far as he was
concerned, he “had no notion of cheating anybody;" that the ques-
tion of paying debts and the question of compensating the loyalists
were two, and that, while he was opposed to compensating the loyal-
ists, he would agree to a stipulation to secure the payment of debts.
It was therefore provided, in the 4th article of the treaty of peace,
that creditors on either side should meet with no lawful impediment
to the recovery in full sterling money of bona fide debts contracted
prior to the war. This stipulation not only purported to override
State laws, but was strongly retroactive. The State courts, holding
themselves to be bound by the local statutes, refused to enforce it. To
meet this difficulty, there was inserted in the Constitution of the
United States the clause declaring treaties then made or which should
be made, to be the supreme law of the land, in spite of anything in
the constitution or laws of any State to the contrary. On the strength
of this provision, the question was carried before the Supreme Court
732
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of the United States, by which it was held that the treaty restored to
the original creditor his right to sue.
Moore's Digest, vol. V, pp. 246, 247 ; Ware v. Hylton, 3 Dallas 199; John
Marshall, by J. B. Moore, Political Science Quarterly (Sept. 1901),
XVI. 393, 400_402.
"In mere private cases between individuals, a court will and ought
to struggle hard against a construction which will, by a retrospective
operation, affect the rights of parties, but in great national concerns,
where individual rights, acquired by war, are sacrificed for national
purposes, the contract making the sacrifice ought always to receive a
construction conforming to its manifest import; and if the nation has
given up the vested rights of its citizens, it is not for the court, but for
the government, to consider whether it be a case proper for compen-
sation."
Moore's Digest, vol. V, p. 247; Marshall C. J., United States v. Schooner
Peggy (1801), 1 Cranch, 103, 109. This language was used with refer-
ence to the provisions of the convention between the United States
and France of September 30, 1800, for the restoration of property
captured but not definitively condemned. The convention having in-
tervened since the judgment below, it was held that the Supreme
Court was bound to order the restoration, without regard to the
merits of the judgment.
By an act of the legislature of Maryland of 1780 French subjects
were empowered to inherit real estate in that State, subject to the pro-
viso that, within ten years after inheriting, they should settle in and
become citizens of the State, or else enfeoff a citizen of some one of the
United States. Certain French subjects inherited lands under this
statute in 1799, but, having failed to perform the conditions of the
proviso, claimed that they were protected in their estate by Article
VII. of the treaty between the United States and France of September
30, 1800, by which it was provided that, in case the laws of either coun-
try should restrict the rights of foreigners with respect to real estate,
such real estate“ might be sold, or otherwise disposed of, to citizens or
inhabitants of the country where it may be." It was claimed that
these stipulations secured the right of disposal for life, and also that
they operated on an estate which was vested when they were entered
into. These positions were sustained, Marshall, C. J., delivering the
opinion.
Moore's Digest, vol. V, pp. 247, 248; Chirac v. Chirac (1817), 2 Wheat.
259, 276.
A treaty giving certain rights of succession to realty to subjects of a
foreign sovereign is not retroactive so as to affect the succession of a
person who died before the treaty.
Moore's Digest, vol. V, p. 248; Prevost v. Greneaux, 19 How. 1.
TAKING EFFECT OF PEACE TREATIES.
733
“ The principle that a treaty is not to be held to operate retroactively
in respect to vested rights does not apply to conventions of extradi-
tion. It is a general principle that such conventions apply to offences
committed prior to their conclusion, unless there is an express limita-
tion."
Moore's Digest, vol. V, p. 248; Moore on Extradition, 1. 99, citing Twiss,
Law of Nations (1884), 411; Foelix, Droit Int. privé, II.341; Seijas,
El Derecho Hispano-Americano, I. 183; In re Giacomo, 12 Blatchf.
391; Case of Clinton, Forsyth's Cases and Op. on Constit. Law, 366.
A fugitive has no vested right of asylum ; nor does the provision of the
Constitution of the United States against ex post facto laws apply.
(In re Giacomo, 12 Blatchf. 391; Mr. Evarts, Sec. of State, to Mr.
Seward, Jan. 30, 1880, 131 MS. Dom. Let. 431.)
A stipulation that a treaty should not apply to crimes committed
anterior to the date hereof," was held to refer to the date of signa-
ture. (Matter of Metzer, 5 N. Y. Leg. Obs. 83.)
See, also, In re Vandervelpen, 14 Blatchf. 137.
1
The covenants or guarantees in a treaty, when dependent on certain
concessions, cannot be enforced until the concessions are actually
made.
Moore's Digest, Vol. 5, p. 248; Mr. Fish, Sec. of State, to Mr. Baxter,
min. to Honduras, No. 19, Mar. 20, 1871, 577, as to the guarantee by
the United States of the neutrality of the proposed Honduras Inter-
oceanic Railway under Art. XIV. of the treaty of 1864.
Eliza Ann, 1 Dodson 244.—Sir W. Scott said (pp. 248–251):“ This
war has, however, been happily terminated by a treaty of peace, which
was signed by the plenipotentiaries of the two countries, on the 18th
of July, ratified by the Prince Regent of Great Britain on the 4th of
August, and by the King of Sweden on the 17th of the same month.
From the result of these dates it has been contended, that the war had
ceased, and that friendship had been reestablished before the time
when these vessels were seized. The question, therefore, comes to this,
whether a ratification is or is not necessary to give effect and validity
to a treaty signed by plenipotentiaries. Upon abstract principles we
know that, either in public or private transactions, the acts of those
who are vested with a plenary power are binding upon the principal.
But, as this rule was in many cases found to be attended with incon-
venience, the later usage of states has been to require a ratification,
although the treaty may have been signed by plenipotentiaries. Ac-
cording to the practice now prevailing, a subsequent ratification is
essentially necessary; and a strong confirmation of the truth of this
position is, that there is hardly a modern treaty in which it is not
expressly so stipulated, and, therefore, it is now to be presumed, that
the powers of plenipotentiaries are limited by the condition of a sub-
sequent ratification. The ratification may be a form, but it is an
734
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
essential form; for the instrument, in point of legal efficiency, is im-
perfect without it. I need not add, that a ratification by one power
alone is insufficient; that, if necessary at all, it must be mutual; and
that the treaty is incomplete till it has been reciprocally ratified.
" It is said, however, that the treaty, when ratified, refers back to
the time of its signature by the plenipotentiaries, and that it does so in
this case more especially on account of the terms in which it is drawn.
The words in one of the articles of the treaty, 'Dès ce moment tout
sujet de mésintelligence, qui ait pu subsister sera regarde comme en-
tièrement cessant et detruit,' have been pointed out, and from these it
has been contended, that all hostilities were to cease the moment the
treaty was signed. But I take that not to be the case; the positive and
enacting part of the articles is, that there shall be a firm and inviolable
peace between the two countries; the other part is descriptive only of
the pacific intention of the parties, and of their agreement to bury in
oblivion all the causes of the war. It does not stand in the same sub-
stantive way as the former part of the article, and must be considered
as mere explanatory description. The nature of a treaty of peace is
well explained by Vattel, who lays it down that'a treaty of peace can
be no more than an agreement. Were the rules (he says) of an exact
and precise justice to be observed in it, each punctually receiving all
that belongs to him, a peace would become impossible. He goes on to
say, that as in the most just cause we are never to lose sight of the
restoration of peace, but are constantly to tend towards this salutary
view, no other way is left than to agree on all the claims and griev-
ances on both sides, and to extinguish all differences by the most
equitable convention which the juncture will admit of. It is, there-
fore, an agreement to waive all discussion concerning the respective
rights of the parties, and to bury in oblivion all the original causes of
the war. It is an explanation of the nature of that peace and good
understanding which is to take place between the two countries, when-
ever that event shall be happily accomplished. It would be stretch
beyond the limits to which a fair interpretation of these words could
be carried, to say they were intended to convey any other meaning.
I am of opinion, therefore, that the ratification is the point from which
the treaty must take effect. Dès ce moment must be referred to the
moment at which the treaty received its valid existence by mutual
ratification. It is perfectly clear that it was so considered on the part
of Sweden. The British officer who was sent to the Swedish coast was
still received with the same caution as in the time of war,
and was
blindfolded before he was permitted to enter Carlsham. Hanoe re-
mained in British possession, and the only communication between
that island and the main land of Sweden was by flags of truce.
Though it was reasonable to expect that Sweden would return to the
relations of amity with this country, yet it is quite clear that she had
а.
TAKING EFFECT OF PEACE TREATIES.
735
not at that time confirmed the treaty, and, therefore, could not be
entitled to the benefit of a neutral character."
United States v. Arredondo, 6 Peters 691. Thompson, J. said (p.
758): “ The true rule on this subject is laid down by Mr. Justice
Washington, in the case of Hylton v. Brown, 1 W. C. C. 312, that the
treaty, when ratified, relates back to the time of signing. The ratifica-
tion is nothing more than evidence of the authority under which the
minister acted. A government is bound to perform and observe a
treaty made by its minister, unless it can be made to appear, that he
has exceeded his authority. But a ratification is an acknowledgment
that he was authorized to make the treaty; and if so, the nation is
bound, from the time the treaty is made and signed; and it is worthy
of notice, that in all the acts of congress in relation to this treaty, it
is referred to as of the date of 22d February 1819, the time it was
signed; thereby showing the understanding of our own government
on the subject. If this, then, is to be taken as the date of the treaty,
there is no pretence, that at that time, or even when ratified by the
king of Spain, any settlement had been made, or possession taken of
any part of this tract. It is, therefore, in my opinion, a case not
coming within the saving provision in the eighth article of the treaty."
Davis v. The Police Jury of Concordia, 9 Howard 289. Mr. Justice
Wayne said (p. 289): “All treaties, as well those for cessions of ter-
ritory as for other purposes, are binding upon the contracting parties,
unless when otherwise provided in them, from the day they are signed.
The ratification of them relates back to the time of signing. Vattel,
B. 4, c. 2, sec. 22. Mart. Summary, B. 8, c. 7, sec. 5."
Haver v. Yaker 9 Wall. 32-35. Mr. Justice Davis delivered the
opinion of the court: “It is undoubtedly true, as a principle of in-
ternational law, that, as respects the rights of either government
under it, a treaty is considered as concluded and binding from the
date of its signature. In this regard the exchange of ratifications has
a retroactive effect, confirming the treaty from its date. But a dif-
ferent rule prevails where the treaty operates on individual rights.
The principle of relation does not apply to rights of this character,
which were vested before the treaty was ratified. In so far as it
affects them, it is not considered as concluded until there is an
exchange of ratifications, and this we understand to have been
decided by this court, in Arredondo's case, reported in 6th Peters,
vol. VI, p. 749. The reason of the rule is apparent. In this country,
a treaty is something more than a contract, for the Federal Con-
stitution declares it to be the law of the land. If so, before it can
become a law, the Senate, in whom rests the authority to ratify it,
must agree to it. But the Senate are not required to adopt or reject
it as a whole, but may modify or amend it, as was done with the
treaty under consideration. As the individual citizen, on whose
736
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
rights of property it operates, has no means of knowing anything
of it while before the Senate, it would be wrong in principle to
hold him bound by it, as the law of the land, until it was ratified
and proclaimed. And to construe the law, so as to make the ratifica-
tion of the treaty relate back to its signing, thereby divesting a
title already vested, would be manifestly unjust, and cannot be
sanctioned."
Dooley v. United States, 182 U. S. 222, 230. The Court said:
“In their legal aspect, the duties exacted in this case were of three
classes: (1) the duties prescribed by General Miles under order of
July 26, 1898, which merely extended the existing regulations;
(2) the tariffs of August 19, 1898, and February 1, 1899, prescribed
by the President as Commander in Chief, which continued in effect
until April 11, 1899, the date of the ratification of the treaty and
the cession of the island to the United States; (3) from the ratifica-
tion of the treaty to May 1, 1900, when the Foraker act took effect.
“There can be no doubt with respect to the first two of these
classes, namely, the exaction of duties under the war power, prior
to the ratification of the treaty of peace. While it is true the treaty
of peace was signed December 10, 1898, it did not take effect upon
individual rights, until there was an exchange of ratifications.
Haver v. Yaker, 9 Wall. 32.”
TREATIES OF PEACE, EFFECT OF.
Moral obligation.
Treaties of peace, when made by the competent power, are obliga-
tory upon the whole nation. If the treaty requires the payment of
money to carry it into effect, and the money cannot be raised but
by an act of the legislature, the treaty is morally obligatory upon
the legislature to pass the law, and to refuse it would be a breach
of public faith.
Kent, vol I, p. 180.
The effect of a treaty of peace is to put an end to the war, and
to abolish the subject of it. Peace relates to the war which it ter-
minates. It is an agreement to waive all discussion concerning the
respective rights of the parties, and to bury in oblivion all the
original causes of the war. It forbids the revival of the same war,
by taking arms for the cause which at first kindled it, though it is
no objection to any subsequent pretensions to the same thing on other
foundations. After peace, the revival of grievances arising before
the war is not to be encouraged, for treaties of peace are intended
to put an end to such complaints; and if grievances then existing
are not brought forward at the time when peace is concluded, it
is to be presumed that it is not intended to bring them forward at
any
future time. Peace leaves the contracting parties without any
right of committing hostility, for the very cause which kindled the
war, or for what has passed in the course of it. It is, therefore,
no longer permitted to take up arms again for the same cause. But
this will not preclude the right to complain and resist, if the same
grievances which kindled the war be renewed and repeated; for
that would furnish a new injury and a new cause of war equally
just with the former war. If an abstract right be in question be-
tween the parties, the right, for instance, to impress at sea one's
own subjects from the merchant vessels of the other, and the parties
make peace without taking any notice of the question, it follows, of
course, that all past grievances, damages, and injury, arising under
such claim, are thrown into oblivion, by the amnesty which every
treaty implies; but the claim itself is not thereby settled, either one
way or the other. It remains open for future discussion, because
the treaty wanted an express concession or renunciation of the claim
itself.
Kent, vol. I, pp. 182, 183; The Eliza Ann, 1 Dodson, 249; The Molly,
1 Dodson, 396.
737
738
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A treaty of peace leaves everything in the state in which it finds it,
if there be no express stipulation on the subject. If nothing be said
in the treaty of peace about the conquered country or places, they
remain with the possessor, and his title cannot afterwards be called
in question. During war, the conqueror has only a usufructuary
right to the territory he has subdued; and the latent right and title
of the former sovereign continues, until a treaty of peace, by its
silence or by its express stipulation, shall have extinguished his
title for ever.
Kent, vol. I, pp. 183, 184; The Molly, 1 Dodson, 396.
Private rights not related to the war.
The peace does not affect private rights which had no relation to
the war.
Debts existing prior to the war, and injuries committed
prior to the war, but which made no part of the reasons for under-
taking it, remain entire, and the remedies are revived. There are
certain cases in which even debts contracted or injuries committed
between two subjects of the belligerent powers, during the war, are
the ground of a valid claim, as in the case of ransom bills, and of
contracts made by prisoners of war for subsistence, or in a trade
carried on under a license. This would be the case if the debt between
them was contracted, or the injury was committed, in a neutral
country.
Kent, vol. I, p. 184; Alcinous v. Nigreu, 4 El. & Bl. 217, 219; Crawford
v. The William Penn, 3 Wash. 484.
Titles quieted by peace.
Another question arose subsequent to the treaty of Ghent, of 1814,
in one of the British vice-admiralty courts, on the validity of a re-
capture, by a British ship of war, of a British vessel captured by an
American privateer. The capture made by an American cruiser was
valid, being made before the period fixed for the cessation of hostil-
ities, and in ignorance of the fact; but the prize had not been carried
into port and condemned, and while at sea she was recaptured by the
British cruiser after the period fixed for the cessation of hostilities,
but without knowledge of the peace. It was decided that the posses-
sion of the vessel by the American privateer was a lawful possession,
and that the British cruiser could not, after the peace, lawfully use
force to divest this lawful posssession. The restoration of peace put
an end, from the time limited, to all force, and then the general prin-
ciple applied, that things acquired in war remain, as to title and
possession, precisely as they stood when the peace took place. The
uti possidetis is the basis of every treaty of peace, unless it be other-
wise agreed. Peace gives a final and perfect title to captures with-
out condemnation; and as it forbids all force, it destroys all hopes of
EFFECT OF PEACE TREATIES.
739
recovery as much as if the vessel was carried infra praesidia, and
condemned. A similar doctrine was held in the case of the Schooner
Sophie, and a treaty of peace has the effect of quieting all titles of
possession arising from the war, and of putting an end to the claim of
all former proprietors to things of which possession was acquired by
right of war.
Kent, vol. I, p. 187; The Legal Tender, Halifax, 1815, cited in
Wheaton's Digest, 302; The Schooner Sophie, 6 C. Rob. 138.
Condition in which things are restored.
If nothing be said to the contrary, things stipulated to be restored
are to be returned in the condition in which they were taken; but this
does not relate to alterations which have been the natural consequence
of time, and of the operations of war. A fortress or a town is to be
restored in the condition it was when taken, so far as it shall still be in
that condition when the peace is made. There is no obligation to
repair, as well as to restore, a dismantled fortress or a ravaged ter-
ritory. The peace extinguishes all claim for damages done in war,
or arising from the operations of war. Things are to be restored in
the condition in which the peace found them; and to dismantle a
fortification or to waste a country, after the conclusion of the peace,
and previous to the surrender, would be an act of perfidy.
Kent, vol. I, pp. 187, 188.
Amnesty, claims, and complaints.
It is the usual practice to introduce a leading article in a treaty of
peace declaring an amnesty or a perfect oblivion of what is past; but
although the treaty should be silent on this subject, the amnesty is,
by the very nature of peace, necessarily implied in it. A treaty of
peace puts an end to all claims for indemnity for tortious acts com-
mitted during the war under the authority of one government against
the citizens or subjects of another, unless they are specially provided
for in its stipulations. All personal complaints of losses sustained
or injuries committed by subjects of the belligerent powers during the
war are, as a general rule, silenced and extinguished by the treaty of
peace. There are, however, certain exceptions to this rule, in cases
where a valid claim may be subsequently made from peculiar trans-
actions during the war, as in cases of ransom bills, of contracts made
by prisoners of war for subsistence, and of trade carried on under a
license. So, also, in cases of debts contracted, or injuries committed
during the war by such belligerent subjects in a neutral country. In
all these cases the remedy may be asserted subsequently to the peace.
Although private rights existing before the war may not be remitted
by a treaty of peace, the presumption is otherwise'as to the rights of
1
740
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
kings and nations. (Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 20, $ 19;
Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 3; Vattel, Droit des Gens, liv.
4, ch. 2, 88 19–21; The Eliza Ann, 1 Dod. Rep., p. 249; The Molly, 1
Dod. Rep., p. 396; Kent, Com. on Am. Law, vol. 1, p. 168; Wildman,
Int. Law, vol. 1, p. 142; Riquelme, Derecho Pub. Int., lib. 1, tit. 1,
cap. 13; Bello, Derecho Internacional, pt. 2, cap. 9, § 6; Heffter, Droit
International, $ 180; Kluber, Droit des Gens Mod., § 325; Pando,
Derecho Pub. Int., p. 582.)
Halleck, pp. 851, 852.
Claims.
A treaty of peace does not extinguish claims unconnected with
the cause of the war. Debts, existing prior to the war, and injuries
committed prior to the war, but which made no part of the reasons
for undertaking it, remain entire, and the remedies are revived.
(Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 20, $$ 16, 18; Wheaton,
Elem. Int. Law, pt. 4, ch. 4, $ 3; Kent, Com. on Am. Law, vol. 1, p.
169; Wildman, Int. Law, vol. 1, pp. 142, 143; The Molly, 1 Dod. Rep.,
p. 394.)
Halleck, p. 853.
The effect of a treaty of peace is to put an end to the war, and to
abolish the subject of it. It is an agreement to waive all discussion
concerning the respective rights and claims of the parties, and to
bury in oblivion the original causes of the war. It forbids the revival
of the same war by resuming hostilities for the original cause which
first kindled it or for whatever may have occurred in the course of it.
But the reciprocal stipulation of perpetual peace and amity between
the parties does not imply that they are never again to make war
against each other for any cause whatever. The peace relates to the
war which it terminates; and is perpetual, in the sense that the war
cannot be revived for the same cause. This will not, however, preclude
the right to claim and resist, if the grievances which originally kindled
the war be repeated--for that would furnish a new injury and a new
cause of war, equally just with the former. If an abstract right be in
question between the parties, on which the treaty of peace is silent,
it follows, that all previous complaints and injury, arising under such
claim, are thrown into oblivion, by the amnesty, necessarily implied,
if not expressed; but the claim itself is not thereby settled either one
way or the other. In the absence of express renunciation or recogni-
tion, it remains open for future discussion. And even a specific ar-
rangement of a matter in dispute, if it be special and limited, has
reference only to that particular mode of asserting the claim, and does
not preclude the party from any subsequent pretensions to the same
EFFECT OF PEACE TREATIES.
741
thing on other grounds. Hence the utility in practice of requiring a
general renunciation of all pretensions to the thing in controversy,
which has the effect of precluding forever the assertion of the claim
in any mode.
Wheaton, pp. 715, 716.
Effect on claims.
The treaty of peace does not extinguish claims founded upon debts
contracted or injuries inflicted previously to the war, and unconnected
with its causes, unless there be an express stipulation to that effect.
Nor does it affect private rights acquired antecedently to the war, or
private injuries unconnected with the causes which produced the war.
Hence debts previously contracted between the respective subjects,
though the remedy for their recovery is suspended during the war,
are revived on the restoration of peace, unless actually confiscated,
in the mean time, in the rigorous exercise of the strict rights of war,
contrary to the milder practice of recent times. There are even cases
where debts contracted, or injuries committed, between the respective
subjects of the belligerent nations during the war, may become the
ground of a valid claim, as in the case of ransom-bills, and of con-
tracts made by prisoners of war for subsistence, or in the course of
trade carried on under a license. In all these cases, the remedy may
be asserted subsequently to the peace.
Wheaton, p. 716.
The treaty of peace leaves everything in the state in which it found
it, unless there be some express stipulation to the contrary. The exist-
ing state of possession is maintained, except so far as altered by the
terms of the treaty. If nothing be said about the conquered country
or places, they remain with the conqueror, and his title can not after-
wards be called in question.
Wheaton, p. 716.
Real property.
The restoration of the conquered territory to its original sovereign,
by the treaty of peace, carries with it the restoration of all persons
and things which have been temporarily under the enemy's dominion,
to their original state. This general rule is applied without excep-
tion, to real property or immovables. The title acquired in war to
this species of property, until confirmed by a treaty of peace, confers
a mere temporary right of possession. The proprietary right cannot
be transferred by the conqueror to a third party, so as to entitle him
to claim against the former owner, on the restoration of the terri-
tory to the original sovereign. If, on the other hand, the conquered
742
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
territory is ceded by the treaty of peace to the conqueror, such an
intermediate transfer is thereby confirmed, and the title of the pur-
chaser becomes valid and complete. In respect to personal property
or movables, a different rule is applied. The title of the enemy to
things of this description is considered complete against the original
owner after twenty-four hours' possession, in respect to booty on
land. The same rule was formerly considered applicable to captures
at sea; but the more modern usage of maritime nations requires a
formal sentence of condemnation as prize of war, in order to preclude
the right of the original owner to restitution on payment of salvage.
But since the jus postliminii does not, strictly speaking, operate after
the peace; if the treaty of peace contains no express stipulation re-
specting captured property, it remains in the condition in which the
treaty finds it, and is thus tacitly ceded to the actual possessor. The
jus postliminii is a right which belong exclusively to a state of war;
and therefore a transfer to a neutral, before the peace, even without
a judicial sentence of condemnation, is valid, if there has been no
recovery or recapture before the peace.
Wheaton, p. 717.
The restoration of peace put an end, from the time limited, to all
force; and then the general principle applied, that things acquired
in war remain, as to title and possession, precisely as they stood when
the peace took place. The uti possidetis is the basis of every treaty
of peace, unless the contrary be expressly stipulated. Peace gives a
final and perfect title to captures without condemnation, and as it
forbids all force, it destroys all hope of recovery, as much as if the
captured vessel was carried infra præsidia and judicially condemned.
Wheaton, pp. 719, 720.
Things restored.
Things stipulated to be restored by the treaty, are to be restored
in the condition in which they were first taken, unless there be an
express provision to the contrary; but this does not refer to altera-
tions which have been the natural effect of time, or of the opera-
tions of war. A fortress or town is to be restored as it was when
taken, so far as it still remains in that condition when the peace is
concluded. There is no obligation to repair, as well as restore, a
dismantled fortress or a ravaged territory. The peace extinguishes
all claim for damages done in war, or arising from the operations of
war. Things are to be restored in the condition in which the peace
found them; and to dismantle a fortification or waste a country after
the conclusion of peace, and previously to the surrender, would be
an act of perfidy. If the conqueror has repaired the fortifications,
and re-established the place in the state it was in before the siege, he
EFFECT OF PEACE TREATIES.
743
is bound to restore it in the same condition. But if he has con-
structed new works, he may demolish them; and, in general, in order
to avoid disputes, it is advisable to stipulate in the treaty precisely
in what condition the places occupied by the enemy are to be restored.
Wheaton, p. 720.
.
Private rights.
But private rights, the prosecution of which is interrupted by war,
are revived by peace, although nothing may be said upon the subject;
for a peace is a return to a normal state of things, and private rights
depend not so much on concessions, like public ones, as on common
views of justice. And here we include not only claims of private
persons, in the two countries, upon one another, but also claims of
individuals on the government of the foreign country, and claims-
private and not political-of each government upon the other exist-
ing before the war.
Woolsey, p. 265.
The effect of a treaty on all grounds of complaint for which a war
was undertaken is to abandon them. Or, in other words, all peace
implies amnesty, or oblivion of past subjects of dispute, whether the
same is expressly mentioned in the terms of the treaty or not. They
cannot, in good faith, be revived again, although a repetition of the
same acts may be a righteous ground of a new war. An abstract or
general right, however, if passed over in a treaty, is not thereby
waived.
If nothing is said in a treaty to alter the state in which the war
actually leaves the parties, the rule of uti possidetis is tacitly ac-
cepted. Thus, if a part of the national territory has passed into the
hands of an enemy during war, and lies under his control at the peace
or cessation of hostilities, it remains his, unless expressly ceded.
So, too, if a fortress or port is ceded by treaty, it must be ceded in
the state in which the treaty finds it. Good faith requires that it
should not be dismantled or blocked up after that event.
Woolsey, pp. 265, 266.
The general effect of a treaty of peace is to replace the belligerent
countries in their normal relation to each other. The state of peace
is set up, and they enter at once into all the rights and are bound by
all the duties which are implied in that relation. It necessarily fol-
lows that, so soon as peace is concluded, all acts must cease which
are permitted only in time of war. Thus if an army is in occupation
of hostile territory when peace is made, not only can it levy no more
contributions or requisitions during such time as may elapse before
it evacuates the country, but it cannot demand arrears of those of
744
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
which the payment has been already ordered. It is obviously not
an exception to this rule that an enemy may be authorised by the
treaty of peace itself to do certain acts which, apart from agreement,
would be acts of war; such as to remain in occupation of territory
until specific stipulations have been fulfilled, or to levy contributions
and requisitions if the subsistence of the troops in occupation is not
provided for by the government of the occupied district; a state may
of course always contract itself out of its common law rights. It can
also hardly be said to be an exception that although prisoners of war
acquire a right to their freedom by the simple fact of the conclusion
of peace, it is not necessary that their actual liberation shall instan-
taneously take place; their return to their own country may be subor-
dinated to such rules, and they may be so far kept under military
surveillance, as may be dictated by reasonable precaution against
misconduct or even by reasonable regard for the convenience of the
state by which they have been captured.
By the principle commonly called that of uti possidetis it is under-
stood that the simple conclusion of peace, if no express stipulation
accompanies it, or in so far as express stipulations do not extend,
vests in the two belligerents as absolute property whatever they re-
spectively have under their actual control in the case of territory and
things attached to it, and in the case of moveables whatever they have
in their legal possession at the moment; occupied territory, for ex-
ample, is transferred to the occupying power, and moveables on the
other hand, which have been in the territory of an enemy during the
war without being confiscated, remain the property of the original
owner. The doctrine is not altogether satisfactory theoretically, but
it supplies a practical rule for the settlement of such matters relat-
ing to property and sovereignty as may have been omitted in a treaty,
or for covering concessions which one or other party has been un-
willing to make in words. This advantage could evidently not be
claimed by the necessarily alternative doctrine that, except in so far
as expressly provided, all things should return to their state before
the war.
When a stipulation to the latter effect is made it is to be under-
stood, if couched in general terms, to mean only that any territory
belonging to one party, which may be occupied by the other party,
with the buildings &c. on it, is to be handed back with no further
changes than have been brought about by the operations of war, or
by acts legitimately done during the course of hostilities. The clause
covers neither property which has been appropriated, nor property
which has been destroyed or damaged, in accordance with the laws
of war.
Hall, pp. 579-581.
EFFECT OF PEACE TREATIES.
745
A treaty of peace has the following effects with reference to acts
done before the commencement of the war which it has terminated.
1. It puts an end to all pretensions, and draws a veil over all quar-
rels, out of which the war has arisen. It has set up a new order of
things, which forms a fresh starting-point, and behind which neither
state may look. War consequently cannot be renewed upon the same
grounds.
2. It revives the execution of international engagements of a certain
kind, when such execution has been suspended by one or both of the
parties to a war.
3. In a general way it revives all private rights, and restores the
remedies which have been suspended during the war;-contracts, for
example, are revived between private persons if they are not of such
a kind as to be necessarily put an end to by war, and if their fulfil-
ment has not been rendered impossible by such acts of a belligerent
government as the confiscation of debts due by subjects to those of
its enemy; the courts also are re-opened for the enforcement of claims
of every kind.
Hall, pp. 583, 584.
!
The chief and general effect of a peace treaty is restoration of the
condition of peace between the former belligerents. As soon as the
treaty is ratified, all rights and duties which exist in time of peace
between the members of the family of nations are ipso facto and at
once revived between the former belligerents.
On the one hand, all acts legitimate in warfare cease to be legiti-
mate. Neither contributions and requisitions, nor attacks on mem-
bers of the armed forces or on fortresses, nor capture of ships, nor
occupation of territory are any longer lawful. If forces, ignorant
of the conclusion of peace, commit such hostile acts, the condition of
things at the time peace was concluded must as far as possible be
restored. Thus, ships captured must be set free, territory occupied
must be evacuated, members of armed forces taken prisoners must be
liberated, contributions imposed and paid must be repaid.
On the other hand, all peaceful intercourse between the former bel-
ligerents as well as between their subjects is resumed as before the
Thus diplomatic intercourse is restored, and consular officers
recommence their duties.
Attention must be drawn to the fact that the condition of peace
created by a peace treaty is legally final in so far as the order of things
set up and stipulated by the treaty of peace is the settled basis of
future relations between the parties, however contentious the matters
concerned may have been before the outbreak of war. In concluding
peace the parties expressly or implicitly declare that they have come
war.
110678—19-
48
746
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
to an understanding regarding such settled matters. They may in-
deed make war against each other in future on other grounds, but
they are legally bound not to go to war over such matters as have
been settled by a previous treaty of peace. That the practice of
States does not always comply with this rule is a well-known fact
which, although it discredits this rule, cannot shake its theoretical
validity.
Unless the parties stipulate otherwise, the effect of a treaty of
peace is that conditions remain as at the conclusion of peace. Thus,
all moveable State property, as munitions, provisions, arms, money,
horses, means of transport, and the like, seized by an invading bellig-
erent remain his property, as likewise do the fruits of immovable
property seized by him. Thus further, if nothing is stipulated re-
garding conquered territory, it remains in the hands of the possessor,
who may annex it. But it is nowadays usual, although not at all
legally necessary, for the conqueror desirous of retaining conquered
territory to stipulate cession of such territory in the treaty of peace.
Oppenheim, vol. 2, pp. 332–334.
Amnesty.
Since a treaty of peace is considered a final settlement of the war,
one of the effects of every peace treaty is the so-called amnesty-
that is, an immunity for all wrongful acts done by the belligerents
themselves, the members of their forces, and their subjects during
the war, and due to political motives. It is usual but not at all neces-
sary to insert an amnesty clause in a treaty of peace. So-called
war crimes, which were not punished before the conclusion of
peace may no longer be punished after its conclusion. Indi-
viduals who have committed such war crimes and have been
arrested for them must be liberated. International delinquencies
committed intentionally by belligerents through violation of the rules
of legitimate warfare are considered condoned. Formerly even
claims for reparation of damages caused by such acts could not be
raised after the conclusion of peace, unless the contrary was ex-
pressly stipulated, but the matter is different now in accordance with
article 3 of Convention IV. of the Second Peace Conference.
On the other hand, the amnesty has nothing to do with ordinary
crimes or with debts incurred during war. A prisoner of war who
commits murder during captivity may be tried and punished after
the conclusion of peace, just as a prisoner who runs into debt during
captivity may be sued after the conclusion of peace, or an action may
be brought on ransom bills after peace has been restored.
But it is important to remember here again that the amnesty
grants immunity only for wrongful acts done by the subjects of one
belligerent against the other. Such wrongful acts as have been com-
EFFECT OF PEACE TREATIES.
..747
mitted by the subjects of a belligerent against their own Government
are not covered by the amnesty. Therefore treason, desertion, and
the like committed during the war by his own subjects may be pun-
ished by a belligerent after the conclusion of peace, unless the con-
trary has been expressly stipulated in the treaty of peace.
Oppenheim, vol. 2, pp. 334, 335.
Effect on prisoners of war.
A very important effect of a treaty of peace is termination of the
captivity of prisoners of war. This, however, does not mean that
with the conclusion of peace all prisoners of war must at once be re-
leased.
The instant release of prisoners at the very place
where they were detained, would be inconvenient not only for the
State which kept them in captivity, but also for themselves, as in
most cases they would not possess means to pay for their journey
home. Therefore, although with the conclusion of peace they cease
to be captives in the technical sense of the term, prisoners of war re-
main as a body under military discipline until they are brought to
the frontier and handed over to their Government. That prisoners
of war may be detained after the conclusion of peace until they have
paid debts incurred during captivity seems to be an almost generally
recognized rule. But it is controversial whether such prisoners of
war may be detained as are undergoing a term of imprisonment im-
posed upon them for offenses against discipline. After the Franco-
German War in 1871 Germany detained such prisoners, whereas
Japan after the Russo-Japanese War in 1905 released them.
Oppenheim, vol. 2, pp. 335, 336.
As to revival of treaties.
The question how far a peace treaty has the effect of reviving
treaties concluded between the parties before the outbreak of war is
much controverted. The answer depends upon the other question,
how far the outbreak of war cancels existing treaties between bellig-
erents.
There can be no doubt that all such treaties as have been cancelled
by the outbreak of war do not revive. On the other hand, there can
likewise be no doubt that such treaties as have only become sus-
pended by the outbreak of war do revive. But no certainty or
unanimity exists regarding such treaties as do not belong to the
above two classes, and it must, therefore, be emphasized that no rule
of International Law exists concerning these treaties. It is for the
parties to make such special stipulations in the peace treaty as will
settle the matter.
Oppenheim, vol. 2, pp. 336, 337.
1
748 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
The legal effects of a treaty of peace.
The main effect of a treaty of peace is to re-establish both as be-
tween the States concerned and their respective subjects those normal
relations which obtain amongst members of the society of nations.
As between the States previously at war, hostilities and all acts inci-
dental thereto necessarily come to an end, military or martial law
ceases to apply, and the inhabitants are remitted to their rights un-
der the territorial law; prisoners of war are released; and both diplo-
matic intercourse between the States and commercial intercourse
between their subjects are resumed. All prior engagements, more-
over, whether on the part of the States themselves or of their sub-
jects, which were merely suspended by war, together with all con-
sequent remedies, are revived. The treaty serves to mark the moment
from which these results ensue. As regards matters occurring be-
fore the war, the treaty is presumed to put an end to all pretensions
founded on acts or defaults that gave rise to the war, and to merge
all consequent rights and obligations in the new rights and obliga-
tions set up by the treaty. As regards acts done during or in rela-
tion to the war even though irregularly, such acts cannot, except by
express reservation or subsequent agreement, be made the ground
of any public or private demand or proceeding as between parties
who were previously hostile. This will not, indeed, preclude a State
from proceeding against such of its own subjects as may have com-
promised themselves by dealings with the enemy; but an amnesty
clause is sometimes inserted which will cover even these acts, although
it will not affect actions arising out of private contracts or criminal
prosecutions for acts having no relation to the war. With respect to
territory, if no provision is made for its cession or evacuation, the
rights of the parties are deemed to be governed by the principle of
uti possidetis, in virtue of which each retains such territory as is
under his control at the time of the termination of the war. And the
same principle applies equally to moveable property in the posses-
sion of either belligerent. On the other hand, where a return to the
status quo ante bellum is stipulated for, all property formerly be-
longing to one party but at the time in the possession of the other
must be restored, although this will be subject to any changes wrought
by the war and to any acts lawfully done during its continuance.
With respect to the property of subjects of one belligerent that may
be found in the territory of the other, the right to full enjoyment of
this-if, indeed, it has been the subject of restriction or sequestra-
· tion during the war—will revert without express stipulations on the
restoration of peace. But this will not apply to property which has
already been confiscated, in cases where confiscation is permissible;
nor will it apply to maritime-property which has already been cap-
EFFECT OF PEACE TREATIES.
749
1
tured, as to which a decree of condemnation may be pronounced
even after the war, although this right is occasionally waived. Where
part of the territory of one belligerent is ceded to the other, the
rights of the inhabitants are usually safeguarded by express stipula-
tion; but even without this by general usage, to which municipal law
commonly conforms, their proprietary and personal rights are usually
respected. This will not, however, preclude the new Sovereign from
enforcing rights of forfeiture which would have availed his prede-
cessor in title in the like circumstances. The legal consequence of ces-
sion, in other respects, have already been described.
Cobbett, pt. II, pp. 227–229.
1
Effect on claims.
Injuries sustained by private property as a direct result of bel-
ligerent acts-battle, siege, bombardment-or incidental thereto are
not the subject of indemnification. The conduct of the belligerent,
however, must conform to the laws of war, both in justification and
execution. Private losses thus sustained in war are considered as due
to necessity and force majeure. Vattel first stated what has since
been accepted as the correct grounds for the non-liability of the
state for these war losses—“the public finances would soon be
exhausted” and “these indemnifications would be liable to a thousand
abuses." Yet as an act of grace, as has been remarked, a state may,
after peace, consent to compensate its subjects and even domiciled
aliens for their losses, thus distributing the individual loss equitably
over the whole nation. As between the belligerents and enemy sub-
jects, the treaty of peace, usually constitutes a final settlement of
grievances, even of those arising out of a violation of the laws of
war to the injury of enemy persons and property. Neutrals, however,
even with respect to property in hostile territory, retain the right to
make diplomatic claims against the offending belligerent for viola-
tions of the laws of war.
Borchard, p. 256; Vattel, bk. iii, ch. 15, sec. 232, p. 402.
ܕ
Effect on claims.
Another example of (attempted) merger of the private and public
interest in an international claim was exposed in the claim of the
seamen of the U. S. S. Maine against the United States (as the
assignee of Spain) before the Spanish Treaty Claims Commission,
arising out of the injuries sustained by the seamen when that vessel
was blown up, under an allegation of responsibility of Spain, in the
harbor of Havana in 1898. The claim was dismissed by the Commis-
sion on the ground that individual claims do not arise in favor of
the officers and seamen of a ship of war who receive, in the line of
duty, injuries to their persons for which a foreign government is
750 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
responsible; and that the claim being wholly national, all injuries to
officers and seamen are merged in the national injury, their only relief
being the gratuitous bounty of their own government. This decision
places these claims in the same class as the cases discussed in the pre-
ceding paragraph. A better reasoned ground of decision is contained
in the concurring opinion of Commissioner Maury who took the posi-
tion that the treaty of peace itself put an end to and extinguished all
causes of difference between the belligerents.
Borchard, p. 361.
Effect on claims.
Pecuniary claims may not only be lost by abandonment of the
government, but certain forms of international action may serve to
extinguish the claim. For example, war between the claimant and
defendant countries would extinguish any private claims not pro-
vided for in the treaty of peace, at least, so far as concerns those
which were a direct cause of the war. Again, if a claimant suffers
injury in a transaction for which his government assumes responsi-
bility, his claim becomes merged in the diplomatic settlement of the
political question involved. In all cases, the international settlement
of a claim by agreement of the two governments involved, estops the
claimant from all right to again demand any redress from the foreign
country against which his claim arose.3
Borchard, p. 367.
peace.
“Judicial intercourse between the courts of Cuba and Porto Rico
and of Spain has been established, as provided by the treaty of
The Cuban political prisoners in Spanish penal stations have been
and are being released and returned to their homes, in accordance
with Article VI of the treaty.”
Moore's Digest, vol. VII, p. 336; President McKinley, annual message,
Dec. 5, 1899, For. Rel. 1899, XXX.
The Duke of Arcos was presented to the President June 3, 1899. (For.
Rel. 1899, 680-682.)
Mr. Storer was received by the Queen-Regent of Spain June 16, 1899
(Id. 679-680.)
Hijo v. United States, 194 U. S. 315.—Mr. Justice Harlan said:
“Besides, the treaty of peace between the two countries provided that
'the United States and Spain mutually relinquish all claims for in-
demnity, national and individual, of every kind, of either Govern-
1 McCann v. U. S., No. 30, Opinion of the Commission delivered March 6, 1902, Opinion
by the President of the Commission.
2 McLeod (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 2419, 2422. McCann v. U. S.
No. 30 (The Battleship Maine cases, before the Spanish Tr. Cl. Com.).
3 Aguirre (Mexico) 7. U. S., July 4, 1868, Moore's Arb, 2430–2437; Houard (U. S.) v.
Spain, Feb. 12, 1871, ibid. 2428.
EFFECT OF PEACE TREATIES.
751
ment, or of its citizens or subjects, against the other Government,
that may have arisen since the beginning of the late insurrection in
Cuba and prior to the exchange of ratifications of the present treaty,
including all claims for indemnity for the cost of the war. The
United States will adjudicate and settle the claims of its citizens
against Spain relinquished in this article. This stipulation clearly
embraces the claim of the plaintiff--its claim against the United
States for indemnity having arisen prior to the exchange of ratifica-
tions of the treaty of peace with Spain.”
THINGS DONE AFTER CONCLUSION OF TREATY OF PEACE. .
According to the doctrine of the best jurists, the effect of Peace,
once contracted, being to render unlawful every act of force or vio-
lence between States, if a capture be made after the stipulation is
completed, though by persons ignorant of its completion, it must,
vi pacis, be restored, “sublatum enim jam erat belli jus.”
For Peace (says the author just cited) is considered to be broken
non modo si toti corpori civitatis, sed et si subditis vis armata infer-
atur nimirum sine novä сausâ:” and for this grave and excellent
reason, “ nam ut omnes subditi tuti sint pax initur; est enim pax actus
civitatis pro toto et pro partibus.
Phillimore, vol. III, pp. 777, 778; Grotius, 1, iii, c. XX, ss. 20. 32.
Abreu, however, is strongly in favour of the lawfulness of the prize,
and maintains stoutly the rights of the captor. He was acting under
a lawful commission; till that commission was directly or by clear
implication revoked, it was his right and duty to act under it. At
the time of the capture that commission was not so revoked; the cap-
ture was therefore legal. To the argument that the conclusion of
the Peace can retrospectively affect the prize, he answers that a jus
superveniens can never by retroaction affect the jus tertii, which is the
right of the captor in this supposed case.
The answer to the argument of Abreu appears to be that of the
indemnification of the captor should proceed from the State to which
he belongs; and that though individuals are not deemed criminals
for continuing hostilities after their cessation has been agreed upon,
through ignorance of that cessation, yet they are civilly responsible
before the tribunals of International Law. When a place is exempted
from hostilties by articles of Peace it is the duty of Governments to
apprise with due diligence their subjects of the fact; and to indemnify
them for acts done in ignorance of that Peace.
But it is the actual wrongdoer who is to answer in judgment: the
person from whom the injury has been received cannot be passed over
in order that it may be fixed upon another person on the ground of
a consequential responsibility. So, if a captain, acting under the
orders of an admiral, be the seizor, he, and not the admiral, must be
called, as the immediate wrongdoer, to adjudication.
Phillimore, vol. III, pp. 778, 779; The Mentor, 1 Rob. Adm. Rep. p. 171.
752
1
THINGS DONE AFTER CONCLUSION OF PEACE.
753
It may happen that a period has been fixed by Treaty for the ces-
sation of hostilities within or at a specified place, and before this
period has arrived, but with a knowledge of the Peace, a capture has
been made. In such a case, is the capture lawful? Jurists have en-
tertained different opinions upon this subject. Mr. Chancellor Kent
adopts the opinion of Emerigon, that it would be unlawful; and
his reasoning, viz. that if a constructive knowledge of the Peace, after
the time limited in different parts of the world, renders the capture
void, much more ought actual knowledge of the Peace to produce that
effect. It appears to the writer of these pages that this reasoning
is sound and ought to govern the practice of States.
Phillimore, vol. III, p. 779.
The effect of constructive knowledge has undergone considerable
discussion in the French Prize Courts. It arose on the capture of
the British ship Swineherd by the French privateer Bellone in 1801.
The Swineherd was carried into the Isle of France and condemned as
prize. An appeal was instituted in the Conseil des Prises at Paris;
that tribunal confirmed the judgment of the Court in the Isle of
France. We are indebted to M. Merlin for the report of the case.
Unfortunately we are not indebted to him for the expression of his
own opinion, which that learned and laborious jurist expresses his
determination to withhold, when he introduces the case to our notice.
He reports, however, at length the argument of the Advocate-General,
M. Collet Descotils, in favour of the legality of the capture.
The case depended in some measure upon the 11th article of the
Preliminary Articles of the Peace of Amiens; it was decided, rightly
or wrongly, that the French privateer was entitled to its prize, the
Swineherd, upon a variety of grounds, the principal of which appear
to have been, that the capture was made at a period anterior to the
time fixed for restitution; that it was sheltered by the Preliminary
Article which has been mentioned; that there was, on the part of the
privateer, “ le défaut de connaissance suffisante de la cessation de toute
hostilité."
Phillimore, vol. III, p. 779; Merlin, Rep. tome xxv, tit. Prise Maritime,
S. 5, p. 115.
Another case different from the foregoing has happened, and been
subjected to judicial decision, both in England and the North Ameri-
can United States,—the case of a capture made before the period fixed
for the cessation of hostilities, and in ignorance of the Peace; but
not carried into port and condemned. The vessel was recaptured
after the period fixed for the cessation of hostilities, but in ignorance
of the Peace. In both countries the possession of the captor was
754
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
holden lawful, and the divesting him of his possession unlawful.
The title of the owner was completely barred by the intervention of
Peace, which quiets all titles of possession to property of this kind
arising from War.
It is no longer competent to the original proprietor to look back
to the enemy's title, either in his own possession or in the hands of
neutral purchasers.
And here it may also be remarked, that if a new war break out
after the Treaty of Peace, on account of nonfulfilment of its pro-
visions or for any other reason, though that may change the relation
of those who are parties to it, it can, as Lord Stowell observes, have
no effect on neutral purchasers, who stand in the same situation as
before.
Phillimore, vol. III, p. 782; The Legal Tender, Wheaton's Digest, p.
302; The Schooner Sophie, 6 C. Rob. 143.
Civil responsibility for continuing hostilities.
But though individuals are not deemed criminal for continuing
hostilities after the date of the peace, so long as they are ignorant
of it, a more difficult question to determine is, whether they are
responsible civiliter in such cases. Grotius says, they are not liable
to answer in damages, but it is the duty of the government to restore
what has been captured and not destroyed. In the case of the Ameri-
can ship Mentor, which was taken and destroyed, off Delaware Bay,
by British ships of war, in 1783, after the cessation of hostilities,
but before that fact had come to the knowledge of either of the
parties, the point was much discussed; and it was held that the
injured party could not pass over the person from whom the alleged
injury had been received, and fix it on the commander of the English
squadron on that station, who was totally ignorant of the whole
transaction, and at the distance of thirty leagues from the place
where it passed. There was no instance in the annals of the prize
courts of such a remote and consequential responsibility in such a
case.
The actual wrongdoer is the person to answer in judgment,
and to him the responsibility, if any, is attached. He may have
other persons responsible over him, but the injured party could look
only to him. The better opinion was, that though such an act be done
through ignorance of the cessation of hostilities, yet mere ignorance
of that fact would not protect the officer from civil responsibility in
a prize court; and that if he acted through ignorance, his own gov-
ernment must protect him and save him harmless. When a place or
country is exempted from hostility by articles of peace, it is the duty
of the government to use due diligence to give its subjects notice of
the fact; and the government ought, in justice, to indemnify its sub-
jects who act in ignorance of the peace. And yet it would seem
THINGS DONE AFTER CONCLUSION OF PEACE.
755
from that case that the American owner was denied redress in the
British admiralty, not only against the admiral of the fleet on that
station, but against the immediate author of the injury. Sir Wil-
liam-Scott denied the relief against the admiral; and ten years before
that time relief had equally been denied by his predecessor against
the person who did the injury. If that decision was erroneous, an
appeal ought to have been prosecuted. We have, then, the decision
of the English High Court of Admiralty, denying any relief in such
a case, and an opinion of Sir William Scott many years afterwards,
that the original wrong-doer was liable. The opinions cannot other-
wise be reconciled than upon the ground that the prize courts have
a large and equitable discretion in allowing or withholding relief,
according to the special circumstances of the individual case, and
that there is no fixed or inflexible general rule on the subject.
Kent, vol. I, pp. 185, 186; The Mentor, 1 C. Rob. 179; The Ostsee, 9
Moore, P. C. 150, 176.
Restoration of captured property.
If a time be fixed by the treaty for hostilities to cease in a given.
place, and a capture be previously made, but with knowledge of the
peace, it has been a question among the writers on public law whether
the captured property should be restored. The better and the more
reasonable opinion is, that the capture would be null, though made
before the day limited, provided the captor was previously informed
of the peace; for, as Emerigon observes, since constructive knowl-
edge of the peace, after the time limited in different parts of the
world, renders the capture void, much more ought actual knowledge
of the peace to produce that effect.
Kent, vol. I, p. 186.
What constitutes knowledge of peace.
This point was extensively discussed in the French prize courts, in
the case of the capture of the British ship Swineherd, by the French
privateer Bellona, in 1801, and what was sufficient knowledge of the
fact of the peace to annul the capture was the great question. The
English ship was taken possession of, and carried into the Isle of
France, and libelled, and condemned as lawful prize of war. The
sentence of condemnation was affirmed in 1803, on appeal to the
Council of Prizes at Paris, and M. Merlin has reported at large the
elaborate argument and opinion of M. Collet-Descotils, the imperial
advocate-general in the Council of Prizes, in favor of the captors.
The ground he took, and upon which the Council of Prizes proceeded,
was, that the king's proclamation of the signature of the preliminary
articles of peace, though made known repeatedly to the French
cruiser before the capture, but unaccompanied by any French at-
756
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
testation, was not that sufficient and indubitable evidence to the
French cruiser of the fact of the peace, upon which he ought to have
acted, and that the period of the five months had not elapsed within
which it was lawful, in the Indian seas, to continue hostilities. The
learned and venerable author of that immense work, the Repertory
of Jurisprudence, says, on introducing the case, that he shall be
silent on the question, and contents himself with giving the discus-
sions, and particularly the opinion of the advocate general and the
reasons of the Council of Prizes. See Répertoire Universel et
Raisonné de Jurisprudence, par M. le Comte Merlin, xiii, tit. Prise
Maritime, sec. 5.
Kent, vol. I, p. 186, note.
Interpretation and violation of treaty.
Treaties of every kind, when made by the competent authority, are
as obligatory upon nations as private contracts are binding upon
individuals; and they are to receive a fair and liberal interpretation,
according to the intention of the contracting parties, and to be kept
with the most scrupulous good faith. Their meaning is to be ascer-
tained by the same rules of construction and course of reasoning
which we apply to the interpretation of private contracts. If a
treaty should, in fact, be violated by one of the contracting parties,
either by proceedings incompatible with the particular nature of
the treaty, or by an intentional breach of any of its articles, it rests
alone with the injured party to pronounce it broken. The treaty, in
such a case, is not absolutely void, but voidable, at the election of the
injured party. If he chooses not to come to a rupture, the treaty
remains obligatory. He may waive or remit the infraction com-
mitted, or he may demand a just satisfaction.
Kent. vol. I, p. 138.
Effect of breach of treaty.
There is a very material and important distinction made by the
writers on public law between a new war for some new cause, and a
breach of a treaty of peace. In the former case, the rights acquired
by the treaty subsist, notwithstanding the new war; but, in the lat-
ter case, they are annulled by the breach of the treaty of peace on
which they are founded. A new war may interrupt the exercise of
the rights acquired by the former treaty, and, like other rights, they
may be wrested from the party by the force of arms. But then they
become newly acquired rights, and partake of the operation and re-
sult of the new war. To recommence a war by breach of the articles
of a treaty of peace is deemed much more odious than to provoke a
war by some new demand and aggression; for the latter is simply in-
justice, but in the former case the party is guilty both of perfidy and
THINGS DONE AFTER CONCLUSION OF PEACE.
757
injustice. The violation of any one article of a treaty is a violation
of the whole treaty; for all the articles are dependent on each other,
and one is to be deemed a condition of the other, and a violation of
any single article overthrows the whole treaty, if the injured party
elects so to consider it. This may, however, be prevented by an
express provision, that if one article be broken, the others shall,
nevertheless, continue in full force. We have a strong instance, in
our own history, of the annihilation of treaties by the act of the in-
jured party. In 1798, the Congress of the United States declared
that the treaties with France were no longer obligatory on the United
States, as they had been repeatedly violated on the part of the French
Government, and all just claims for reparation refused.
Kent. vol. I, pp. 188, 189.
Criminal responsibility.
Although a treaty of peace binds the governments of the contract-
ing powers from the moment of its conclusion (unless otherwise
provided), so that no belligerent right can afterward be lawfully
exercised, it does not affect the citizens or subjects of such powers so
as to render them criminally responsible, and liable to punishment
for acts of hostility, till they have actual or constructive knowledge
of the peace. The treaty is a law to the subjects of the contracting
parties, by which their relations to each other are changed; and no
one is punishable for the breach of a law till it is promulgated. A
seizure jure belli made in time of peace is a wrongful act, and the in-
jured party is entitled to restitution, and the government of the
captor is bound to repair the wrong which was committed; through
ignorance, by its subject; but the subject is not affected with guilt
by reason of acts of hostility subsequent to the date of the treaty of
which he had not been notified. In order to guard against incon-
veniences from the want of due knowledge of a treaty of peace it is
usual to fix the periods at which hostilities are to cease at different
places, and between different lines of latitude and longitude upon the
high seas, and also to provide for the restitution of all property
taken at such places after the peace went into operation, but by
parties acting in ignorance of it. (Kent, Com. on Am. Law. vol. 1,
p. 170; Wheaton, Elem. Int. Law, pt. 4, ch. 4, $ 5; Vattel, Droit des
Gens, liv. 2, ch. 12, 88 156, 157; Phillimore, On Int. Law, vol. 3,
88 518, 519; Emerigon, Traité des Assurances, ch. 12, sec. 22; Wild-
man, Int. Law, vol. 1, pp. 158, et seq.; Hylton v. Brown, 1 Wash.
Rep., pp. 342, 351; Bello, Derecho International, pt. 2, cap. 9, § 6;
Heffter, Droit International, $ 183; Hautefeuille, Des Nations Neu-
tres, tit. 13; Pistoye et Duverdy, Des Prises, tit. 3, ch. 3; De Cussy,
Droit Maritime, liv. 1, tit. 3, § 37.)
Halleck, p. 856.
1
758
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Civil responsibility.
But while all agree that individuals are not criminally responsi-
ble for acts of hostility committed after the date of the peace, so
long as they are ignorant of it, there seems to be a difference of opin-
ion among publicists whether they are responsible civiliter in such
cases. Grotius says they are not liable to answer in damages, but it
is the duty of the government to restore what has been captured and
not destroyed. “But the latter opinion seems to be," says Wheaton,
“that wherever a capture takes place at sea, after the signature of
the treaty of peace, mere ignorance of the fact will not protect the
captor from civil responsibility in damages; and that if he acted in
good faith, his own government must protect him and save him
harmless. When a place or country is exempted from hostility by
articles of peace, it is the duty of the state to give its subjects timely
notice of the fact, and it is bound in justice to indemnify its officers
and subjects who act in ignorance of the fact. In such a case it is
the actual wrong-doer who is made responsible to the injured party,
and not the superior commanding officer of the fleet, unless he be on
the spot, and actually participating in the transaction. Nor will
damages be decreed by the prize court, even against the actual wrong-
doer, after a lapse of a great length of time.” The case of the
American ship Mentor, which was taken and destroyed off Delaware
Bay, by British ships of war, in 1783, after the cessation of hostili-
ties, but before the fact had come to the knowledge of either of the
parties, has given rise to much discussion. The opinion of Sir Wm.
Scott in that case, forms the substance of the foregoing remarks of
Mr. Wheaton. This claim against Admiral Digby was decided in
1799. A claim had previously been made against the actual wrong-
doer, and rejected by the English prize court. (Kent, Com. on Am.
Law, vol. 1, p. 171; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 5; The
Mentor, 1 Rob. Rep., p. 179; Phillimore, On Int. Law, vol. 3, § 519;
Bello Derecho Internacional, pt. 2, cap. 9, $ 6; Wildman, Int. Law,
vol. 1, p. 159; Heffter, Droit International, § 183.)
Halleck, pp. 857, 858.
ܪ
Capture.
When the treaty of peace contains an express stipulation that
hostilities are to cease in a given place at a certain time, and a
capture is made previous to the expiration of the period limited, but
with a knowledge of the peace on the part of the captor, it has been
a question among writers on public law whether the captured prop-
erty should be restored. “ The better and the more reasonable
opinion is," says Kent, " that the capture would be null though
made before the day limited, provided the captor was previously
informed of the peace; for, as Emerigon observes, since construc-
THINGS DONE AFTER CONCLUSION OF PEACE.
759
tive knowledge of the peace, after the time limited in different parts
of the world, renders the capture void, much more ought actual
knowledge of the peace to produce that effect.” Wheaton coincides
in this view, but remarks that it may be questionable whether any-
thing short of an official notification from his own government would
be sufficient, in such a case, to affect the captor with the legal conse-
quences of actual knowledge. This point was extensively discussed
in the French prize courts, in the case of the capture of the British
ship Swineherd by the French privateer Bellona in 1801, but the
particular case was decided on the ground that the king's proclama-
tion of peace was unaccompanied by any French attestation, and was
not that sufficient and indubitable evidence to the French cruiser
of the fact of peace, upon which he ought to have acted. (K’ent,
Com on Am. Law, vol. 1, pp. 172, 173; Wheaton, Elem. Int. Law,
pt. 4, ch. 4, § 5; Valin, Traité des Prises, ch. 4, $$ 4, 5; Merlin, Reper-
toire, verb. Prises Maritimes, & 5; Emerigon, Traité d' Assurance,
ch. 12, $ 19; Abreu, Traité des Prises, pt. 2, ch. 11; The John, Com.
of Claims between U. S. and Great Britain, p. 427; Phillimore, On
Int. Law, vol. 3, $8 520, 521; Wildman, Int. Law, vol. 1, pp. 146–159;
Bello, Derecho Internacional, pt. 2, cap. 9, § 6; De Cussy, Droit
Maritime, liv. 1, tit. 3, § 37.)
Halleck, p. 858.
Recapture.
Another question has arisen with respect to the validity of a recap-
ture of a prize, after peace, but without a knowledge of it, and before
the prize had been carried infra praesidia, and condemned. In the
case of a British vessel captured by an American privateer during
the war, and recaptured while at sea by a British ship of war, after
peace by the treaty of Ghent in 1814, but in ignorance of it, it was
decided in a British vice-admiralty court, that the possession of the
vessel by the American privateer was a lawful possession, and that
the British cruiser could not, after the peace, lawfully use force to
divest this lawful possession. The restoration of peace put an end,
for the time limited, to all force, and then the general principle
applied, that things acquired in war remain, as to title and posses-
sion, precisely as they stood when the peace took place. (Phillimore,
On Int. Law, vol. 3, § 522; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 5;
Kent, Com. on Am. Law, vol. 1, p. 173; The Legal Tender, cited
Wheaton's Dig., p. 302; The Sophie, 6 Rob. Rep., p. 138; Valin,
Traité des Prises, ch. 4, $$ 4, 5; Emerigon, Traité d'Assurances,
ch. 12, § 19.)
Halleck, p. 859.
1
760
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
A treaty of peace binds the contracting parties from the time of
its signature. Hostilities are to cease between them from that time,
unless some other period be provided in the treaty itself. But the
treaty binds the subjects of the belligerent nations only from the
time it is notified to them. Any intermediate acts of hostility com-
mitted by them before it was known, cannot be punished as criminal
acts, though it is the duty of the State to make restitution of the
property seized subsequently to the conclusion of the treaty; and, in
order to avoid disputes respecting the consequences of such acts, it
is usual to provide, in the treaty itself, the periods at which hostili-
ties are to cease in different places.
Grotius intimates an opinion that individuals are not responsible,
even civiliter, for hostilities thus continued after the conclusion of
peace, so long as they are ignorant of the fact, although it is the duty
of the State to make restitution, wherever the property has not been
actually lost or destroyed. But the better opinion seems to be, that
wherever a capture takes place at sea, after the signature of the treaty
of peace, mere ignorance of the fact will not protect the captor from
civil responsibility in damages; and that, if he acted in good faith,
his own government must protect him and save him harmless.1
When a place or country is exempted from hostility by articles of
peace, it is the duty of the State to give its subjects timely notice of
the fact; and it is bound in justice to indemnify its officers and sub-
jects who act in ignorance of the fact. In such a case it is the actual
wrong-doer who is made responsible to the injured party, and not
the superior commanding officer of the fleet, unless he be on the spot,
and actually participating in the transaction. Nor will damages be
decreed by the prize court, even against the actual wrong-doer, after
a lapse of a great length of time.
Wheaton, pp. 718, 719.
When the treaty of peace contains an express stipulation that
hostilities are to cease in a given place at a certain time, and a
capture is made previous to the expiration of the period limited, but
with a knowledge of the peace on the part of the captor, the capture
is still invalid; for since constructive knowledge of the peace, after
the periods limited in the different parts of the world, renders the
capture void, much more ought actual knowledge of the peace to
1 This arises from the difference between private suits and public criminal proceedings.
The latter are for wrongs done to the commonwealth, by breaches of the peace, or other
injuries of a public nature, and are based on an actual or constructive criminal intent.
But an individual is bound to make good to another a loss he may have occasioned him,
although done in ignorance, by mistake, or even if with friendly intentions. If the act
was not justified and authorized by law, the doer must compensate the sufferer, without
regard to his intent or motive. But, in his relations to his own government or the pub.
lic, the motive and intent is the chief inquiry.
THINGS DONE AFTER CONCLUSION OF PEACE.
761
produce that effect. It may, however, be questionable whether any
thing short of an official notification from his own government would
be sufficient, in such a case, to affect the captor with the legal conse-
quences of actual knowledge. And where a capture of a British
vessel was made by an American cruiser, before the period fixed for
the cessation of hostilities by the treaty of Ghent, in 1814, and in
ignorance of the fact,—but the prize had not been carried infra
praesidia and condemned, and while at sea was recaptured by a
British ship of war, after the period fixed for the cessation of
hostilities, but without knowledge of the peace,-it was judicially
determined, that the possession of the vessel by an American cruiser
was a lawful possession, and that the British recaptor could not,
after the peace, lawfully use force to divest this lawful possession.
Wheaton, p. 719; The Mentor, 1 C. Rob. 121.
:
Violation of provision.
The violation of any one article of the treaty is a violation of the
whole treaty; for all the articles are dependent on each other, and
one is to be deemed a condition of the other. A violation of any
single article abrogates the whole treaty, if the injured party so
elects to consider it. This may, however, be prevented by an express
stipulation, that if one article be broken, the others shall nevertheless
continue in full force. If the treaty is violated by one of the con-
tracting parties, either by proceedings incompatible with its general
spirit, or by a specific breach of any one of its articles, it becomes not
absolutely void, but voidable at the election of the injured party. if
he prefers not to come to a rupture, the treaty remains valid and
obligatory. He may waive or remit the infraction committed, or he
may demand a just satisfaction.
Wheaton, pp. 720, 721.
Duress not good plea.
It is a general and necessary principle that duress cannot be set up
against the obligation of a treaty of peace. Coercion and duress are
of the essence and idea of war; and it is the understanding upon
which nations go to war, that each appeals to the chances of successful
coercion. One of these chances is, that the conqueror may turn his
success into a completed conquest, and destroy the independent na-
tional existence of his enemy. If he abtains from this, recognizes his
enemy as still an independent though coerced body politic, and ac-
cepts from him terms of peace, those terms are binding on each. If
duress could abrogate a treaty of peace, wars would never end, ex-
cept either by mere de facto cessation of hostilities, settling nothing,
or by completed conquests. Still, it has been said that, if the con-
queror exacts terms which are offensive to humanity, permanently
110678–19-49
762
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
1
ignominous, or unsupportable, the other party is at liberty to violate
the treaty whenever he may be strong enough. But this general
statement requires the moralist to maintain that a nation which has
appealed from law to force, taken its chances and lost, may make an
agreement with the intention of violating it, and abide its time for a
new appeal to force when the other party to the agreement may be at
a disadvantage. It raises the ancient question of casuistry respecting
deception practised on a superior power, and extends it to the case
of the losing party in a voluntary contest. This is much more a
moral than a legal question, and is composed of many elements. If
the conquered party was the aggressor in the war, from motives of
ambition merely, the world would give him little sympathy in an
attempt to save himself from completed conquest by a deceptive com-
pact, however severely he may have been treated. But if the war
was begun unjustly by the conqueror, and especially if for the purpose
of subjugation, the moral aspect of the question would be altered.
So much, too, depends on the infinite degrees and kinds of exaction
which are made, whether they are immoral and offensive to hu-
manity, or merely severe and mortifying to pride, that it is impracti-
cable to lay down a rule on the subject. An admitted violation of a
treaty of peace not obtained by fraud, for the sole purpose of trying
to escape from its terms by an appeal to a second war, may perhaps
be justified by imaginable circumstances in the origin or conduct of
the original war, or by supposable terms in the treaty itself; but it is
hardly worth while to attempt to give to such a case scientific limits
and definitions in a treatise on what may be called, in any sense, law.
If a treaty is obtained by fraud, it is not binding. The war contem-
plates coercion, but does not contemplate fraud in international ar-
rangements. Such a treaty should be repudiated as soon as the fraud
is discovered. But if, by reason of his own fraud in making the
treaty of peace, one party to the war has placed the other at a mili-
tary disadvantage, and kept an advantage to himself, it becomes a
question of casuistry again, whether and how far the defrauded
nation may use delay and secrecy, or even stratagem, to regain its
equal terms, before repudiating the treaty and renewing war.
Wheaton, pp. 722, 723, Dana's note 258.
But it is held that captures made after a peace, but before the
captor has become aware of it, subject him to a civil suit for damages,
and that he must fall back on his government to save him harmless.
It is also held that a capture made before the time for the cessation
of hostilities at a particular spot, but with a knowledge that the
peace has been concluded, is unlawful, and must be restored; the rea-
son for which rule is that the limit of time is intended to cover
hostile acts performed in ignorance of the new pacific relation.
Woolsey, p. 266.
THINGS DONE AFTER CONCLUSION OF PEACE.
763
Acts of war.
.
Acts of war done subsequently to the conclusion of peace, or to
the time fixed for the termination of hostilities, although done in
ignorance of the existence of peace, are necessarily null. They being
so, the effects which they have actually produced must be so far as
possible undone, and compensation must be given for the harm
suffered through such effects as cannot be undone. Thus, territory
which has been occupied must be given up; ships which have been
captured must be restored; damage from bombardment or from loss
of time or market, &c. ought to be compensated for; and it has been
held in the English courts, with the general approbation of subse-
quent writers, that compensation may be recovered by an injured
party from the officer through whose operations injury has been
suffered, and that it is for the government of the latter to hold him
harmless. It is obvious, on the other hand, that acts of hostility
done in ignorance of peace entail no criminal responsibility.
Hall, 585, 586.
In the case of the Mentor, which was an American ship captured off
the Delaware by English cruisers, all parties being ignorant that a
cessation of hostilities had taken place, Lord Stowell said, “If an act
of mischief was done by the king's officers, through ignorance, in a
place where no act of hostility ought to have been exercised, it does
not necessarily follow that mere ignorance of that fact would protect
the officers from civil responsibility. If by articles a place or dis-
trict was put under the king's peace, and an act of hostility was
afterwards committed therein, the injured party might have a right
to resort to a court of prize, to show that he had been injured by this
breach of the peace, and was entitled to compensation; and if the
officer acted through ignorance his own government must protect
him;
he is to be borne harmless at the expense of that
government.
The Mentor, 1 C. Rob. 183, Hall, p. 586, note.
*
Performance of treaty.
The general rule, that treaties must be performed in good faith,
applies to peace treaties as well as to others. The great importance,
however, of a treaty of peace and its special circumstances and condi-
tions make it necessary to draw attention to some points connected
with the performance of treaties of peace. Occupied territory may
have to be evacuated, a war indemnity to be paid in cash, boundary
lines of ceded territory may have to be drawn, and many other tasks
performed. These tasks often necessitate the conclusion of numerous
treaties for the purpose of performing details of the peace treaty
concerned, and the appointment of commissioners who meet in con-
764
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ference to inquire into details and prepare a compromise. Difficul-
ties may arise in regard to the interpretation of certain stipulations
of the peace treaty which arbitration will settle if the parties cannot
agree. Arrangements may have to be made for the case in which a
part or the whole of the territory occupied during the war remains,
according to the peace treaty, for some period under military occu-
pation, such occupation to serve as a means of securing the perform-
ance of the peace treaty. One can form an idea of the numerous
points of importance to be dealt with during the performance of a
treaty of peace if one takes into consideration the fact that, after the
Franco-German War was terminated in 1871 by the Peace of Frank-
fort, more than a hundred Conventions were successively concluded
between the parties for the purpose of carrying out this treaty of
.
Oppenheim, vol. 2, pp. 337, 338.
Sir W. Scott in his judgment [The John, 2 Dodson, 336] merely
decided that inasmuch as the captor had acted in unavoidable igno-
rance his possession was a bonâ fide possession, and that he could not
therefore be held personally liable for a loss unattended by negli-
gence; the question of the liability of the Government being left
open. Although in such cases the decree of a competent Court is
judicially conclusive, yet if the result of the decision appears to in-
volve a denial of justice or the infraction of some admitted principle,
or ifmas occurred in the case of The John-it fails to touch the real
issue, then it will be open to the State to which the injured party
belongs to prosecute the claim diplomatically. This was accord-
ingly done in the case before us, with the result that the question
was, although long afterwards, referred to a Commission. This
decided (1) that where certain times are specified for the cessation
of hostilities, such times will be presumed to be those within which
each Power can reasonably give notice to its commanders of the
termination of the war; and (2) that if this is not done, then all
captures effected after such times will be regarded as being at the
risk of the Government of the captor, and in the event of loss how-
ever occurring, as involving an obligation of indemnity. As regards
the personal irresponsibility of the captor, however, it needs to be
noticed that in the case of The Mentor (1 C. Rob. 179)—where an
American vessel had been destroyed by a British captor, in 1783, in
ignorance of the restoration of peace--the Court inclined to the view
that a captor in such a case might be made liable in damages,
although if he acted in ignorance he ought to be indemnified by his
own Government.
If no special period is fixed for the cessation of hostilities, then all
property captured after the conclusion of peace must be restored
THINGS DONE AFTER CONCLUSION OF PEACE.
765
when that fact is duly established. Moreover, even if a special
period is fixed, all hostilities and captures should cease when once
the fact of peace becomes known; although a naval or military com-
mander is not bound to accept such notice except from his own Gov-
ernment. So, in the case of The Swineherd—where a British vessel
had been captured by a French privateer within the five months
fixed by the Treaty of Amiens for the cessation of hostilities be-
tween Great Britain and France in the Indian seas, but after notice
of the peace had been received by the prize, and also by the captor
himself although not from an official source—the vessel was con-
demned on the ground that the capture was effected at a time an-
terior to that fixed for restitution by the treaty, and that the captor
had not as yet that authentic and sufficient knowledge of the cessa-
tion of hostilities which he was bound to require. Where a prize has
been taken during the war, but recaptured after the cessation of hos-
tilities and in ignorance of the peace, the prize ought strictly to be
restored to the captor, even though not previously condemned; for
the reason that even the possessory rights of a captor cannot be
infringed after the cessation of hostilities. Some States, however,
now incline to the practice of restoring all property which has been
taken as prize but not actually condemned at the time when peace is
concluded. So, in the case of The Doelwyk, referred to hereafter,
the Italian Courts, although they found the vessel in guilt, refrained
from pronouncing a decree of condemnation, on the ground that
peace had meanwhile been established.
GENERAL NOTES.—Hostile Acts done in Ignorance of Peace.—When
a war is terminated by treaty of peace, all acts of hostility are pro-
hibited as from the date of its signature, unless some other time is
expressly agreed on; and this even though the treaty itself may be
subject to ratification. Where, as sometimes happens, hostile acts
are done in ignorance of the termination of war, they must so far as
possible be undone and compensation afforded by the belligerent in
default. So territory occupied or places taken or captures made
thereafter must be restored; prisoners taken must be released; and
contributions and requisitions exacted, even though by way of ar-
rears, must be repaid. When hostilities extend to distant regions,
with which communication may be difficult, it was formerly the
practice to fix on some future date, or even different dates for dif-
ferent regions, at which hostilities should be brought to a close; but
owing to modern facilities of communication, such cases are scarcely
likely to occur in the future. In such a case, however, if hostilities
should occur or a capture be made after the time or times agreed on,
the State to which the aggressor or captor belongs will be responsible
to the extent of an adequate indemnity. Moreover, if, even before
766
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the expiry of the period or periods agreed on, authentic notice
reaches a naval or military commander, it is now commonly agreed,
in spite of some previous divergence of opinion, that he ought to
abstain from further acts of war. This, however, is subject to the
reservation that he is not bound to accept such notice unless it comes
to him directly or indirectly through his own Government; a reser-
vation which sometimes operates harshly, but which is at bottom
not unreasonable, having regard to the serious consequences that
might attend the suspension of warlike operations on information
that was erroneous or intentionally deceptive.
Cobbett, pt. II, pp. 232–234; Hall, p. 556.
The Speedwell, 2 Dallas, 40.—“BY THE COURT.-It appearing by
the inspection of the record, that the schooner in question, was cap-
tured from the British, since the operation of the preliminary ar-
ticles of peace (to wit, on the day of — -), the condemnation
cannot be sustained."
The Mentor, 1 C. Rob. 179.--The Court said: “The circumstances
of the case, as far as it is necessary to state them, are these: The ship
being American property, was on a voyage from Havana to Phila-
delphia in 1783; off the Delaware she was pursued by his Majesty's
ships The Centurion and The Vulture, then cruising off that river,
under the command of the admiral on that station, Admiral Digby,
All parties were in complete ignorance of the cessation of hostilities;
not only the persons on board the king's ships, but the Americans, as
well those on the shores, as those on board the vessel. In the pur-
suit, shots were fired on both sides, and it is alleged on the part of
the British, that the ship was set on fire by her own crew, who took
to the shore.
“Now, I incļine to assent to Dr. Lawrence's position, that if an act
of mischief was done by the king's officers, though through ignor-
ance, in a place where no act of hostility ought to have been exer-
cised, it does not necessarily follow that mere ignorance of that
fact would protect the officers from civil responsibility. If by ar-
ticles, a place or district was put under the king's peace, and an act
of hostility was afterwards committed therein, the injured party
might have a right to resort to a court of prize, to show that he had
been injured by this breach of the peace, and was entitled to com-
pensation; and if the officer acted through ignorance, his own gov-
ernment must protect him. For it is the duty of governments, if they
put a certain district within the king's peace, to take care that due
notice shall be given to those persons by. whose conduct that peace is
to be maintained; and if no such notice has been given, nor due dili-
gence used to give it, and a breach of the peace is committed through
the ignorance of those persons, they are to be borne harmless, at the
THINGS DONE AFTER CONCLUSION OF PEACE.
767
expense of that government whose duty it was to have given that
notice.
“I am, therefore, inclined to think, that the determination of the
judge in the former case did not turn upon the mere circumstance of
ignorance on the part of the king's ships, but that looking at all the
circumstances under which the event took place, and considering
their just and legal effect, he was of opinion upon the whole result,
that the protest on the part of the captors was well sustained. If
that opinion of the judge was erroneous, an appeal ought to have
been prosecuted. No appeal was prosecuted, though such a purpose
was formerly declared, and a protocol entered, but no farther pro-
ceedings were pursued thereon.
“Mr. Wilson states in his affidavit, that distress of fortune pre-
vented him from proceeding further. I have to lament that, as
well as many other circumstances that accompany the case, but courts
of justice must pursue the legal modes; they cannot bend to the
private distresses of individuals. If an appeal is not prosecuted,
the conclusion of law is, that the party acquiesces in the decision.
“Now, what did the judge determine? He determined this: that
the act of destruction which took place, took place under such cir-
cumstances that the captor was not compellable to proceed to adjudi-
cation upon it. And shall I, at the distance of ten years, after he has
determined that the actual captors were subject to no responsibility
at all, determine that Admiral Digby, a person totally ignorant of
the whole transaction, at the distance of thirty leagues from the
place where it passed, and utterly unprovided with all the means of
defence, which either a knowledge of the fact, or a possession of
evidence can supply, is liable, after a lapse of seventeen years, to be
called upon to proceed to adjudication; or in other words, to justify
the destruction of this vessel, or failing therein, to be answerable in
damages? Surely such a determination could be founded on nothing
but a determined opposition to every principle of law and justice by
which the proceedings of this court have been directed, ever since it
bore the shape of an established court of justice.
“Having said this, I shall decline entering minutely into the cir-
cumstances of the case, which have been rather alluded to than par-
ticularly discussed by the counsel. I feel for the misfortunes of the
claimant. He has applied to this court, and he was judicially in-
formed ten years ago, that the loss he has sustained was not of that
nature which would entitle him to support an action for damages
against the persons whom he considered as the immediate wrong-
doers; still less can he be entitled to support it against the person
who is the object of the present suit. And I, therefore, with the
fullest conviction of mind, discharge Admiral Dighy from the effect
of the present monition."
CONQUEST
It is now pretty generally acknowledged that there is both absurdity
and iniquity in classing territory obtained by conquest under the
category of res nullius, and in applying, with unreasoning pedantry
or sophistical injustice, not the spirit, but the letter, of the Roman law,
to a subject matter which, like that of conquest, has necessarily under-
gone, in all its bearings, a most important change since the time of
Justinian.
The shameless pretext of Frederick the Second for the invasion of
Saxony, in 1756, will not be alleged again by the most reckless despiser
of International Justice.
Various and many Treaties of Peace fortify the sound interna-
tional doctrine that conquest and occupation of territory are distinct
public acts, carrying with them very different consequences, both to
the State and to the individual. The language of Treaties which
concern the acquisition of conquered territory is that the subdued
state yields or concedes a certain territory to another; not that the
conquering State retains or keeps possession of what it has seized,
which would be the proper expression in the Treaty with respect to a
State obtaining the recognition of an occupied territory.
Phillimore, vol. III, pp. 784, 785.
+ 9
Conquest and occupation.
Conquest and occupation are distinct things, governed as to their
legal effects in various respects by different principles and attended
with different consequences. Nevertheless, there is an analogy between
the two, and, in some respects, the rules of occupation are applicable
to the case of conquest.
Conquest is often defined as occupatio bellica; and it so far partakes
of the nature of occupation, that unless the conqueror has actual pos-
session of the thing conquered he can exercise no right over it.
Phillimore, vol. III, p. 814.
Allegiance of inhabitants.
It often happens that the consideration of the effect of conquest
upon Private Rights gives rise to a question of the largest magnitude
and gravest importance, namely, the effect of this event upon the
allegiance of the inhabitants of the conquered country. This is a
question which requires to be examined with reference to two predica-
ments, viz.:
768
CONQUEST.
769
1. The effect of a foreign conquest upon the allegiance of the
conquered.
2. The effect of conquest by one of the parties in a civil war upon
the allegiance of the adherents of the defeated party.
Phillimore, vol. II, pp. 868, 869.
Allegiance of conquered.
As to the effect of a foreign conquest upon the allegiance of the
conquered, the following observations in a judgment delivered by
Mr. Justice Story are well worthy of observation
“The second objection," says that learned judge, “is, that the
Court directed the jury that Castine was, under the circumstances,
a foreign port. By · foreign port,' as the terms are here used, may
be understood a port. within the dominions of a foreign sovereign,
and without the dominions of the United States. The port of Cas-
tine is the port of entry for the district of Penobscot, and is within
the acknowledged territory of the United States. But, at the time
referred to in the Bill of Exceptions, it had been captured, and was
in the open and exclusive possession of the enemy. By the con-
quest and occupation of Castine, that territory passed under the
allegiance and sovereignty of the enemy. The sovereignty of the
United States over the territory was, of course, suspended, and the
laws of the United States could no longer be rightfully enforced,
or be obligatory upon the inhabitants, who remained and submitted
to the conquerors. Castine, therefore, could not, strictly speaking, ,
be deemed a port of the United States; for its sovereignty no longer
extended over the place. Nor, on the other hand, could it, strictly
speaking, be deemed a port within the dominions of Great Britain,
for it had not permanently passed under her sovereignty. The right
which existed was the mere right of superior force; the allegiance.
was temporary, and the possession not that firm possession which
gives to the conqueror plenum dominium et utile, the complete and
perfect ownership of property. It could only be by a renunciation
in a Treaty of Peace, or by possession so long and permanent as
should afford conclusive proof that the territory was altogether
abandoned by its sovereign, or had been irretrievably subdued, that
it could be considered as incorporated into the dominions of the
British sovereign. Until such incorporation by a recapture or re-
possession, the territory would be entitled to the full benefit of the
law of Postliminy. If then, by the term 'foreign port' were in-
tended a port absolutely within the dominions of a foreign sover-
eign, and incorporated into his realm, it might be very doubtful if
the direction of the Court could be sustained. But it seems to me,
that taking the whole direction together, in reference to the first
770
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
and third counts, it meant no more than that Castine, being in the
possession of the enemy by right of conquest, it was no longer to be
considered as a port of the United States with reference to the non-
importation Acts, but that, so far as respected the obligatory force
of the laws of the United States, it was to be considered a “foreign
port,' or port extra ligeantiam reipublicae. And in this view the
direction may well, in point of law, be supported.
“This leads me to the third objection, viz., that the bringing of the
goods from Halifax to Castine was sufficient, to all purposes, to
entitle the United States to a verdict on the first and third counts,
whereas the Court directed the jury to the contrary. Without stop-
ping to examine whether the single fact of bringing the goods from
Halifax to Castine was of itself, to all the purposes of this libel,
sufficient to entitle the United States to a verdict on these counts,
as the opinion guardedly expresses it, let us attend to the substance of
the objection. It rests altogether upon the assumption that Castine
was to be deemed a port of the United States, in which the laws had
their full operation, notwithstanding it was, at the time of the sup-
posed importation, in the actual possession of Great Britain. This
position, however, is utterly inadmissible upon every principle of
the Law of Nations. By the conquest and occupation, the laws of the
United States were necessarily suspended in Castine; and by their
surrender the inhabitants became subject to such laws, and such laws
only, as the Conqueror chose to impose. No other laws could, in the
nature of things, be obligatory upon them, for where there is no
protection or sovereignty, there can be no claim to obedience. This
objection, therefore, must be also overruled."
Phillimore, vol. III, p. 869–871; United States v. Hayward, 2 Galli-
son, 500-502.
1
Allegiance of conquered in a civil war,
We have next to consider the effect of a conquest by one of the
parties in a Civil War upon the allegiance of the adherents of the
defeated party.
The case supposed is always one of nicety and difficulty.
It would rather seem, as a matter of speculation, that, when an old
government is so far overthrown that another government entirely
claims, and at least partially exercises, the jurisdiction which for-
merly belonged to it, the individual is left to attach himself to, and
to become, by adoption at least, the subject of either government.
The analogy under which it is most just to range such cases has been
thought to be that which has just been discussed, viz., the rule which
applies to cases of foreign conquest, where those only are bound
to obedience and allegiance who remain under the protection of the
Conqueror.
CONQUEST.
771
In the cases arising out of the Revolution by which the North
American Colonies of Great Britain became an Independent State, it
was considered to be an established maxim of Public and Inter-
national Law that there was vested in an Individual a right of
electing to remain under the old or of contracting a new allegiance.
The choice must be made within a reasonable period of time.
At the close of the recent War between France and Prussia, the
inhabitants of the conquered provinces of Alsace and Lorraine were
obliged to make their choice of nationality within a given time.
Phillimore, vol. III, p. 871; Inglis v. Trustees, &c., 3 Peters, 157;
Jackson v. White, 20 Johnson, 313.
Court decisions in United States.
The jurisprudence of the United States of North America upon
this subject is remarkable. The records of their Supreme Court may
be said, with few exceptions, to furnish almost the only example of the
disputes of States submitted to formal trial and decision before judges
in the same manner as the affairs of Private Individuals. This
peculiarity is owing to the particular relations in which the executive
of the Union stands to the different States which compose that Union,
and the now established right of the Supreme Court to decide public
disputes arising between State and State, and also those disputes in
which the great corporation of the United States has an interest.
It has been truly said that" a suit in a Court of Justice between such
parties, and upon such a question, is without example in the juris-
prudence of other countries."
These decisions will often be found valuable repositories of learning
and argument upon questions of International Jurisprudence. They
are of course not binding as precedents upon foreign States; and the
stream of public justice upon these great topics may sometimes be
coloured by the necessities of the peculiar position, actual and his-
torical, in which the North American United States stand, in their
relation both to their own territorial acquisitions and to those of other
States inhabiting the same continent with themselves. For instance,
it has become a cardinal maxim of their public jurisprudence that the
system under which the United States were settled has been that of
converting the discovery of the country into conquest; and the prop-
erty of the great mass of the community originates in this principle,
which cannot be rejected by Courts of Justice.
With the doctrine of merging the rights of discovery into those of
conquest and the denial of rights of property to the native inhabitants,
it is certainly not the intention of the writer of these pages to express
any concurrence. Though it appears to him perfectly clear that the
rights of sovereignty of the United States over their territorial ac-
quisitions are now placed upon the solid and secure basis of prescrip-
772
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
tire possession. It is manifest, however, that if the doctrines of Public
Law laid down in these decisions of the Supreme Court are adopted
by foreign States, they are certainly binding upon the United States
themselves, according to one of the principles of International Law
laid down at the threshold of this work.
Phillimore, vol. III, pp. 872–873; Florida v. Georgia, 21 Curtis, 625;
Johnson v. McKintosh, 5 Curtis, 513.
Supreme Court decisions in United States.
This Supreme Court has arrived at the following among other con-
clusions, which cannot fail to be interesting to the student of Inter-
national Law.
That by the conquest and military occupation of a portion of the
territory of the United States by a public enemy, that portion is to be
deemed a foreign country, so far as respects their revenue laws.
That goods imported into it are not imported into the United
States; and are subject to such duties only as the Conqueror may
impose.
That the subsequent evacuation of the conquered territory by the
enemy, and resumption of authority by the United States, cannot
change the character of past transactions. That the jus postliminii
does not apply to such a case; and that goods previously imported do
not become liable to pay duties to the United States, by the resumption
of their sovereignty over the conquered territory.
That the Courts of a conquering power cannot deny the title ac-
quired by conquest.
That the people of a conquered territory change their allegiance,
but that their relations to each other and their rights of property
remain undisturbed.
That it is very unusual, even in cases of conquest, for the Conqueror
to do more than to displace the Sovereign and assume dominion over
the country. The modern usage of nations, which has become law,
would be violated, that sense of justice and of right which is acknowl-
edged and felt by the whole civilised world would be outraged, if
private property should be generally confiscated and private rights
annulled.
That this being the modern rule, even in cases of conquest, is yet
more applicable to the case of an amicable cession of territory.
These United States by their Inferior Courts have decided that
when a conquered territory is repossessed by its former Sovereign,
private individuals acquire a right to all property that belonged to
them before it was taken by the Conqueror.
Phillimore, vol. III, pp. 874, 875; U. S. v. Rice, 4 Curtis, 391; Johnson v.
McKintosh, 5 Curtis, 503; U. S. v. Percheman, 7 Peters, 86; Wade v.
Barnewell, 2 Bay, 299.
CONQUEST.
773
It is a settled principle, in the law and usage of nations, that the
inhabitants of a conquered territory change their allegiance, and
their relation to their former sovereign is dissolved; but their rela-
tions to each other, and their rights of property, not taken from them
by orders of the conqueror, remain undisturbed. The cession or con-
quest of a territory does not affect the rights of property. Vattel,
b. 3, c. 13, sec. 200; The United States v. Percheman, 7 Peters, 51;
Mitchel v. The United States, 9 Peters, 711; Strother v. Lucas, 12
Peters, 410, 438. The laws, usages, and municipal regulations in
force at the time of the conquest or cession, remain in force, until
changed by the new sovereign. Calvin's case, 7 Co. 17; Campbell
v. Hall, Cowp. 209; 9 Peters, 711, 734, 748, 749; Strother v. Lucas, 12
Peters, 410. There is no doubt of the power of the sovereign to
change the laws of a conquered or ceded country, unless restrained
by the capitulation or treaty of cession. In the case of the Canal Ap-
praisers v. The People, in 17 Wendell, 587, Chancellor Walworth
declared, that in the case of a country acquired by conquest, no for-
mal act of legislation is necessary to change the law; the mere will
of the conqueror is sufficient. This is the case in governments where
the conqueror is in possession of the legislative as well as the execu-
tive power; and until a nation or territory is wholly subdued, the
conqueror is only entitled, by the usage of nations, to hold it as a
temporary possession, by military occupation, until the final issue of
the conquest is settled by treaty, or by the competent constitutional
power. The principle of national law, as declared by the courts of
the United States, is, that conquest does not give the conqueror
plenum dominium et utile. A temporary right of possession and
government is only acquired, unless the treaty of peace settles tho
question otherwise, or there be an absolute abandonment of the terri-
tory by the former sovereign, or an irretrievable subjection to the
conqueror. United States v. Hayward, 2 Gallison, 486; Clark v.
United States, 3 Wash. 104. The rule is different when a country
is claimed by the right of discovery and occupancy, and not by right
of conquest or cession. In the former case, the discoverers and new
occupants carry with them all the general laws of the mother country
applicable to their new situation as colonies, and they become, ipso
facto, the law of the country. Such was the case with the United
States, when they were first colonized by Great Britain, and this
was the case, says Chancellor Walworth, with New York, when con-
quered from the Dutch in 1664; for the English held it, though ac-
quired by conquest from the Dutch, not by that title merely, but by
the prior right of discovery. But if he was in error on that point,
yet, when the English acquired possession of New York by force,
in 1664, the charter granted in that year to the Duke of York con-
tained an explicit declaration of the king's will, that the laws of
774
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
England should be the established laws of the province, and this put
an end to the operation of the Roman Dutch laws imported from Hol-
land. The illustrations above alluded to, of the sovereign power of
the conqueror over the laws of the conquered countries, appears in the
case of the northern barbarians who over-ran the south of Europe
during the 5th and 6th centuries. They neither adopted their own
laws entirely, nor retained those of the conquered countries to their
full extent. The Roman provincials were governed between them-
selves, as to their possessions and personal rights, by the Roman
law; the Salian Franks, by the Salic law; the Franks of the Rhine,
by the Ripuarian law; the Alemans and Swabians, by the Alemannic
law; and the Lombards by their own law. (Savigny's Hist. of the
Roman law, i.; and see infra, iii. 491.) So the Mahometan con-
querors of Hindostan introduced their own law so far only as it
affected the followers of Mahomet, leaving the conquered Hindoos to
enjoy their own laws as between themselves. There is, therefore,
now in India one law for Europeans and their descendants, another
for the Hindoos, and another for the Mahometans; and these dif-
ferent laws have been adopted in India by the will of the English
sovereign, without any parliamentary authority. The conquest of
Gibraltar, Trinidad, Ceylon, the Cape of Good Hope, Louisiana, &c.,
all show that the old laws remain, or the laws of the conquering na-
tion, in whole or in part, are substituted, at the mere will and pleas-
ure of the conqueror.
Kent, vol. I, pp. 191, 192, note.
Indemnification of private sufferers.
The release of a territory from the dominion and sovereignty of
the country, if that cession be the result of coercion or conquest, does
not impose any obligation upon the government to indemnify those
who may suffer a loss of property by the cession. The annals of
New York furnish a strong illustration of this position. The terri-
tory composing the State of Vermont belonged to this state; and it
separated from it, and erected itself into an independent state, with-
out the consent, and against the will, of the government of New
York. The latter continued for many years to object to the separa-
tion, and to discover the strongest disposition to reclaim by force
the allegiance of the inhabitants of that state. But they were unable
to do it, and it was a case of a revolution effected by force, analogous
to that which was then in action between this country and Great
Britain. And when New York found itself under the necessity of
acknowledging the independence of Vermont, a question arose before
the legislature, whether they were bound in duty to make compen-
sation to individual citizens whose property would be sacrificed by
the event, because their titles to land lying within the jurisdiction
CONQUEST.
775
of Vermont, and derived from New York, would be disregarded by
the government of that state. The claimants were heard at the bar
of the house of assembly, by counsel, in 1787, and it was contended
on their behalf that the state was bound, upon the principles of the
social compact, to protect and defend the rights and property of all
its members; and that whenever it became necessary, upon grounds
of public expediency and policy, to withdraw the protection of gov-
ernment from the property of any of its citizens, without actually
making the utmost efforts to reclaim the jurisdiction of the country,
the state was bound to make compensation for the loss. In answer to
this argument, it was stated that the independence of Vermont was
an act of force beyond the power of this state to control, and equiva-
lent to a conquest of that territory, and the state had not the competent
ability to recover, by force of arms, their sovereignty over it, and
it would have been folly and ruin to have attempted it. All pacific
means had been tried without success; and as the state was com-
pelled to yield to a case of necessity, it had discharged its duty;
and it was not required, upon any of the doctrines of public law,
or principles of political or moral obligation, to indemnify the suf-
ferers. The cases in which compensation had been made for losses
consequent upon revolutions in government were peculiar and gra-
tuitous, and rested entirely on benevolence, and were given from
motives of policy, or as a reward for extraordinary acts of loyalty
and exertion. No government can be supposed to be able, consistently
with the welfare of the whole community, and it is, therefore, not
required to assume the burden of losses produced by conquest, or
the violent dismemberment of the state. It would be incompatible
with the fundamental principles of the social compact.
This was the doctrine which prevailed; and when the act of July
14, 1789, was passed, authorizing commissioners to declare the con-
sent of the state to the independence of Vermont, it was expressly
declared that the act was not to be construed to give any person
claiming lands in Vermont, under title from this state, any right
to any compensation whatsoever from New York.
Kent, vol. I, pp. 192–194.
Confirmation of conquest.
As already remarked, the conqueror's title to immovable property
taken from the enemy, may be completed in various ways, as by a
treaty of peace or of cession, by entire subjugation and the incorpora-
tion with the conquering State, by civil revolution and the consent of
the inhabitants, or by the mere lapse of time and the inability of the
former sovereignty to recover its lost possessions. We will proceed
to consider these different modes of confirmation. The title to con-
quered territory is made complete by a treaty of peace, either
776
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
express provisions of cession, or by the implied condition of uti pos-
sidetis. If the stipulation of cession is introduced in the treaty, it is
usual to require of the conqueror certain stipulations with respect to
the inhabitants of the ceded conquered territory, in order to secure to
them rights not guaranteed by the positive law of nations. But the
conqueror's title is equally made complete by the silent operation of a
general treaty of peace, for, as the principle of uti possidetis is the
basis of every such treaty, unless the contrary is expressed, the con-
quered territory remains with the conqueror, and his title cannot
afterwards be called in question. But a treaty is not the only mode
in which the rights of conquest are confirmed and made valid. If
the State to which the conquered territory belonged is entirely
subjugated, and its power destroyed, the title of the conqueror is con-
sidered complete from the date of the subjugation of the former Sov-
ereign owner. In this case there could be no treaty of cession or con-
firmation, for, by supposition, the former owner no longer exists as a
Sovereign State; it, therefore, can neither confirm nor call in ques-
tion the conqueror's title. So, also, if the State to which the con-
quered territory belonged be so weakened by the war as to afford no
reasonable hope of ever being able to recover its lost territory, but,
from pride or obstinacy, it refuses to make any formal treaty of peace,
although destitute of the requisite means of prolonging the contest,
the conqueror is not obliged to continue the war in order to force the
other party into a treaty. He may content himself with the conquest
already made, and annex it to, or incorporate it with, his own terri-
tory. His title will be considered complete from the time he proves
his ability to maintain his sovereignty over his conquest, and mani-
fests, by some authoritative act, as of annexation or incorporation,
his intention to retain it as a part of his own territory. Both of these
requisites-ability to maintain and intention to retain-are necessary
to complete the conquest; and the latter must be manifested by some
unequivocal act, as annexation or incorporation, made by the sovereign
authority of the conquering State. Without some such authoritative
act, the conquered territory is held by the rights of military occupation
only, and not as a complete conquest. So far as neutrals are con-
cerned it belongs to the conquering State, but does not form a part
of it. It is held by the right of possession and not by complete title,
and is therefore subject to the rights of postliminy. Again, if the
conquest be accompanied by a civil revolution and a change of internal
government, as where a colony or province revolts against the former
sovereign, and, with the assistance of the conqueror, establishes its
own independence, and unites itself to the conqueror, the sovereignty
of the former owner may be regarded as extinguished by the act of
separation, independence and voluntary annexation or incorporation,
antivi
without a treaty of peace, or of cession. The new internal gov-
CONQUEST.
777
ernment so organized and recognized, acts for itself, independently
of its former sovereign. Such cases, however, are of rare occurrence.
In whatever way the conquest is completed, the institutions of the
conquering power usually require some definitive act in order to annex
or incorporate the conquered territory, so as to complete the con-
quest and perfect the title. In such cases no alienation to a third
party can be made complete till the conquest itself is perfected by
such definitive act. Thus, the President of the United States, when
war is duly declared, may conquer and take possession of foreign
territory, but the joint action of the President and Senate is required
to complete it by treaty, and Congress alone can annex it, or incor-
porate it into the Union. Without such act of treaty confirmation,
or of lawful annexation or incorporation, the title to any conquest
made by the United States would still be considered in international
law as incomplete.
Halleck, pp. 810-812 ; Clark v. United States, 3 Wash, C. C., 101; The
Boedes Lust, 5 C. Rob., 223; the Flotina, 1 Dod. R., 450.
Rights acquired by conqueror.
The conqueror who acquires a province or town from the enemy,
acquires thereby the same rights which were possessed by the State
from which it is taken. If it formed a constituent part of the hostile
State, and was fully and completely under its dominion, it passes into
the power of the conqueror upon the same footing. It is united with
the new State upon the same terms on which it belonged to the old one;
that is, with only such political rights as the constitution and laws of
the new State may see fit to give it. It retains no political privileges
or immunities, but may acquire those it never possessed before. In
political rights it may be the gainer or the loser by the change; if
from being a part of an absolute monarchy it becomes a part of a
republic, its liberties will be enlarged, or, if the reverse, they will be
restricted. But such restriction, in any case, must be in conformity
with the rights of conquest and the laws of war. When New Mexico
formed a part of the Mexican Republic, it enjoyed the right of rep-
resentation in the Mexican Congress; on the conquest of that terri-
tory by the arms of the United States, under Gen. Kearny, a clause
was introduced into the new organic law for sending a representative
to the Congress of the United States. This part of the organic law
was disapproved by the President, and even without such disapproval,
it was utterly inoperative, for this right of representation was a
political right, which was lost by the very act of conquest, and could
be restored to it only by the action of Congress, after its permanent
incorporation into the conquering republic. The case, however, is
different where the enemy possessed only a quasi-sovereignty, or lim-
110678–19
-50
778
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
ited political rights, over the conquered province or town.
The con-
queror acquires no other rights than such as belonged to the State
against which he has taken up arms. "War," says Vattel,"author-
izes him to possess himself of what belongs to enemy. If he de-
prives that enemy of the sovereignty of a town or province, he acquires
it, such as it is, with all its limitations and modifications. Accord-
ingly, care is usually taken to stipulate, both in particular capitula-
tions and in treaties of peace, that the towns and countries ceded
shall retain all their liberties, privileges, and immunities." But where
such conquered provinces and towns have themselves taken up arms
against him, thus making themselves directly his enemies, the con-
queror may regard them as vanquished foes and treat them precisely
as he would treat other conquered territory.
Halleck, pp. 813, 814; Cross v. Harrison, 16 How., 194; American
Ins. Co. v. Canter, 1 Peters, 542; Marcy to Kearny, Jan, 11, 1847,
Ex. Doc., No. 17, 31st Cong., 1st sess., E. R.
Treatment of conquered State.
If the hostile nation be subdued and the entire State conquered, a
question arises as to the manner in which the conqueror may treat it
without transgressing the just bounds established by the rights of
conquest. If he simply replaces the former sovereign, and, on the
submission of the people, governs them according to the laws of the
State, they can have no cause of complaint. Again, if he incorporates
them with his former States, giving to them the rights, privileges,
and immunities of his own subjects, he does for them all that is due
from a humane and equitable conqueror to his vanquished foes. But
if the conquered are a fierce, savage, and restless people, he may, ac-
cording to the degree of their indocility, govern them with a tighter
rein, so as to curb their “impetuosity, and to keep them under sub-
jection. Moreover, the rights of conquest may, in certain cases,
justify him in imposing a tribute or other burthen, either a com-
pensation for the expenses of the war, or as a punishment for the
injustice he has suffered from them. But if he attempts to reduce the
conquered people to a state of absolute subjection, or slavery, there is
no complete conquest, for the state of warfare between that nation
and himself is perpetuated. The Scythians said to Alexander the
Great: “There is never any friendship between the master and the
slave. In the midst of peace, the rights of war still subsist."
Halleck, pp. 814, 815.
Retroactive effect of completion of conquest.
We have already remarked, that when one belligerent acquires
military possession of territory belonging to an enemy, the sover-
eignty and dominion of the latter is suspended. If such possession
CONQUEST.
779
be retained till the completion or confirmation of the conquest, the
temporary dominion thus acquired by the conqueror becomes full and
complete, plenum dominium et utile. Moreover, this confirmation or
completion of the conquest has, so far as ownership is concerned, a
retroactive effect, confirming the conqueror's title from the date of
the conquest, and, therefore, making definitively valid his acts of
ownership-alienation included-during his military occupation. But
it can hardly be said, that the confirmation of the conqueror's title,
by such retroactive effect, changes the previous legal condition of
the conquered territory, and especially in its external relations. That
is, the confirmation of the conquest does not make it a part of the
conquering State during the time it was held simply under the rights
of military occupation. Thus, the duties imposed on foreign goods,
imported into such territory during military occupation, may have
been very different from those which the conqueror could have im-
posed upon the same goods, when imported into his own State; if the
confirmation of the conquest made such territory, in all respects, a
part of the conquering State, from the date of ito military occupa-
tion, it would be necessary to refund the difference between the col-
lections made in it, as simply a foreign conquered territory, and those
which could have been made in it, as a constituent part of the con-
quering State. This could hardly be claimed. The true theory is,
that the retroaction of complete conquest only goes so far as to give
permanency to the acts of the conqueror, done during military occu-
pation.
Halleck, p. 815.
Transfer of allegiance.
It is a general rule of international law that, on the transfer of ter-
ritory by complete conquest or cession, the allegiance of the inhab-
itants of the conquered or ceded territory is transferred to the new
sovereign. Even the perpetual allegiance of the English Common
Law yields to treaty, and it is held that when the king cedes by
treaty, the inhabitants of the ceded territory become aliens. In
the absence of express treaty stipulations, or legislation by the con-
queror, the relations between the conquered and the conqueror are
determined by the law of nations, which establishes the general
rule, that the allegiance of the conquered is transferred to the new
sovereign. It was held by the early civilians that such transfer
of allegiance was absolute and unconditional, unless otherwise
provided by some treaty stipulation; but the rule, as now under-
stood and interpreted, is more liberal and just towards the in-
habitants of the conquered territory. Burlamaqui very justly re-
marks that “the end of a just war does not always demand that the
780
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
2
conqueror should acquire an absolute and perpetual right of sov-
ereignty over the conquered. It is only a favourable occasion of ob-
taining it, and for that purpose there must be an express or tacit
consent of the vanquished. Otherwise, the state of war still subsist-
ing, the sovereignty of the conqueror has no other title than that of
force, and lasts no longer than the vanquished are unable to throw
off the yoke."
**
*
The rule of public law, with respect to the allegiance of the inhab-
itants of a conquered territory, is, therefore, no longer to be inter-
preted as meaning that it is absolutely and unconditionally acquired
by conquest, or transferred and handed over by treaty, as a thing
assignable hy contract, and without the assent of the subject. On the
contrary, the express or implied consent of the subject is now re-
garded as essential to a complete new allegiance. The ligament which
bound him to the former sovereign is dissolved by the transfer of the
territory, for that sovereign can no longer afford him any protection
in that territory. 'But he is still an alien to the new sovereign, and
owes to him only that kind of allegiance called in law local or tem-
porary, and which is due from any alien, while resident in a foreign
country, for the protection which is afforded him by the government
of such country. If the inhabitants of the ceded conquered territory
choose to leave it on its transfer, and to adhere to their former
sovereign, they have, in general, a right to do so. None but an abso-
lute and tyrannical sovereign would force them to remain and become
his unwilling subjects. By doing so he holds them in a kind of
slavery, and, as justly remarked by Burlamaqui, continues the state of
war between him and them. The rule of international law with
respect to the transfer of the allegiance of the inhabitants of con-
quered territory, as established by the present usage of nations, is
more fully and correctly stated by Chief Justice Marshall, in deliver-
ing the opinion of the Supreme Court of the United States: “On the
transfer of territory, the relations of its inhabitants with the former
sovereign are dissolved; the same act which transfers their country,
transfers the allegiance of those who remain in it." The allegiance
of those who do not remain, of course, is not so transferred with the
territory. In other words, they do not, by the transfer of the coun-
try, become the citizens or subjects of the conqueror, nor has he ac-
quired any “absolute and perpetual right of sovereignty” over them.
There is no “consent," either “express or tacit," on their part, in
order to make the transfer of allegiance complete and binding.
Halleck, pp. 816-818; American Insurance Co. v. Canter, I Peters, 542;
Fleming v. Page, 9 Howard, 608; Inglis v. S. S. Harbour, 3 Peters,
122; McIlvaine v. Coxe's Lessee, 4 Crauch, 211.
CONQUEST.
781
Right of election as to citizenship.
From the rule of international law, as thus announced by Chief
Justice Marshall, it is deduced that the transfer of territory estab-
lishes its inhabitants in such a position toward the new sovereignty,
that they may elect to become, or not to become, its subjects. Their
obligations to the former government are canceled, and they may, or
may not, become the subjects of the new government, according to
their own choice. If they remain in the territory after its transfer,
they are deemed to have elected to become its subjects, and thus have
consented to the transfer of their allegiance to the new sovereignty.
If they leave, sine animo revertendi, they are deemed to have elected
to continue aliens to the new sovereignty. The status of the inhabi-
tants of the conquered and transferred territory is thus determined by
their own acts. This rule is the most just, reasonable, and convenient,
which could be adopted. It is reasonable on the part of the conqueror,
who is entitled to know who become his subjects, and who prefer to
continue aliens; it is very convenient for those who wish to become the
subjects of the new State; and it is not unjust toward those who de-
termine not to become its subjects. According to this rule, domicile,
as understood and defined in public law, determines the question of
transfer of allegiance, or rather, is the rule of evidence by which that
question is to be decided.
Halleck, pp. 818, 819.
Change of domicile as affecting citizenship.
This rule of evidence, with respect to the allegiance of the inhabi-
tants of ceded conquered territory, may be inconvenient to those who
do not become subjects of the new sovereignty, as it requires them
to change their domicile; but it is necessary for the protection of the
rights of those who elect to become subjects of the new government,
and especially necessary for determining the rights and duties of the
government which acquires their allegiance, and is bound to afford
them its protection. It would not do to leave the status of the inhab-
itants of the acquired territory uncertain and undetermined, and to
suffer a man's citizenship to continue an open question, subject to be
disputed by any person at any time, and to change with his own
intentions and resolutions, as might best suit his convenience or in-
terest. The reasonableness of the rule is manifest, and its necessity
obvious; and the inconvenience to those who refuse allegiance to the
new State is unavoidable in a public law. If we abandon the old
principle of a forcible and absolute transfer of allegiance, and adopt
that of an express or implied consent, it is necessary to adopt some
rule of evidence by which that consent is to be determined; and we
782
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
know of none better than that of domicile, as laid down by the
Supreme Court of the United States, and approved by the best writers
on public law.
Halleck, pp. 819, 820.
t
Effect upon allegiance of inhabitants.
This modern and more benign construction of the law of nations,
with respect to the allegiance of the inhabitants of conquered or ceded
territory, as announced by Chief Justice Marshall, avoids all ques-
tions of the right of the one State to transfer, and of the other to
claim, the allegiance of subjects of neutral States who are naturalized
or domiciled in the territory transferred by conquest or treaty. All
are alike aliens to the new sovereignty, if they elect to continue so, and
all become its subjects, if it consents to receive them, and they, by
remaining in the transferred territory, signify their election to be-
come such. The new State has the same undoubted right to receive
the voluntary allegiance of the subjects of a neutral power, who are
naturalized or domiciled in the acquired territory, as of the subjects
of that power when they voluntarily enter the State and become its
citizens by the ordinary modes of naturalisation. The former gov-
ernment, by the act of cession or confirmation of conquest, has relin-
quished all its claim to the allegiance of the inhabitants of the trans-
ferred territory, whether natives, naturalised citizens, or domiciled
aliens. The old State, by the transfer of the territory, relinquishes
its claim to the allegiance of its inhabitants, and the new State, by
their tacit consent, receives them as its subjects. The neutral State
can no more complain of the conqueror, for receiving as citizens its
subjects who were naturalized by the conquered State, than it had to
complain of the latter for naturalizing them. Naturalization by
conquest and incorporation can no more be complained of than natu-
ralization by any other mode, so long as it is voluntary on the part
of the person naturalized. And the transfer of allegiance, by the
rule of domicile, or animo manendi, in the conquered territory, is
certainly voluntary on the part of those who so remain.
Halleck, p. 820; Dubois case, 1 Martin, 285; United States v. Laverty
et al., Martin, 747.
Treaty provisions as to election of citizenship.
The inconveniences to those who do not transfer their allegiance,
arising from making the law of domicile the rule of evidence by
which to determine the consent of the conquered, may be avoided by
treaty stipulations, or by the municipal laws of the conqueror. Pro-
visions are sometimes made in treaties for special modes by which the
inhabitants of ceded territory shall exercise their right of election
otherwise than by domicile, such as judicial declarations and public
CONQUEST.
783
registrations of intentions. Thus, in the eighth article of the treaty
of Guadalupe-Hidalgo, between the United States and the Republic
of Mexico, in 1848, it was provided that Mexican citizens established
in the ceded territory might retain the character of Mexicans by de-
claring their intentions to that effect, within one year from the date
of the exchange of ratifications; but without such declaration within
such time, they were to be considered as having elected to become
citizens of the United States. But no provisions of this kind were
made in the treaties by which Louisiana and Florida were acquired;
it, therefore, became necessary, in deciding questions of citizenship,
in the absence of any special modes, to resort to the general rule of
international law, which makes domicile the evidence of assent or
refusal, on the part of the inhabitants, to transfer their allegiance
to the new sovereignty. In the treaties of 1814 and 1815, by which
certain portions of territory acquired since 1791 by France were re-
ceded to the allies, it was stipulated that the inhabitants of such ter-
ritory who wished to remain in France might become Frenchmen
by declaring their intention within a specified time. But this stipu-
lation was objected to by French publicists as being harsh and illib-
eral, because it assumed that the national character of the inhabitants
was forcibly changed by the transfer of the territory, leaving them
no option to retain by domicile in French territory their character
of Frenchmen.
Halleck, p. 821.
Effect upon citizenship.
It may be laid down as a general rule, that the inhabitants of a
conquered territory who remain in it, become citizens of the new
State; for justice would seem to require that the rights of citizenship
should be given them in return for their allegiance. But this general
rule of justice must yield to the conditions upon which the con-
quered are incorporated into the new State, and to the peculiar char-
acter of the institutions and municipal laws of the conqueror. It
could not reasonably be expected that the conquering State would
modify or change its laws and political institutions by the mere act
of incorporating into it the inhabitants of a conquered territory.
The inhabitants so incorporated, therefore, may, or may not, acquire
all the rights of citizens of the new government, according to its con-
stitution and laws. It may, and sometimes does, happen, that a cer-
tain class of the citizens of the conquered territory are, by the laws
of the new State, precluded from ever acquiring the full political
rights of citizenship. This is the necessary and unavoidable result
of the different systems of law which prevail in different States.
Thus, certain persons who were citizens of Mexico, in California and
New Mexico, on the transfer of those territories to the United States,
784
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
by the treaty of Guadalupe-Hidalgo, never have and never can
become citizens of the United States. Such citizenship is repugnant
to the Federal Constitution and Federal organization. Nevertheless,
they may be citizens of California or New Mexico, according to the
local constitutions and laws which those countries have already
adopted, or which they may hereafter adopt.
Halleck, p. 822; Dred Scott 2. Sandford, 19 Howard, 393; Talbot v.
Janson, 3 Dallas, 153.
Political rights, under English law.
As has already been remarked, the laws of different countries with
respect to the relations between the conqueror and the inhabitants of
an acquired conquered territory, are very different. The rules of
English law on this subject are, that “a country conquered by the
British arms becomes a dominion of the king in the right of his
crown, .. that the conquered inhabitants once received under
the king's protection, become subjects, and are to be universally con-
sidered in that light, not as enemies or aliens." Although they owe
the allegiance of subjects, and are entitled to the protection of sub-
jects, it does not follow that they are entitled to all the political
rights of an Englishman in England. They have the rights of
British subjects in the conquered territory, but not necessarily the
political rights of British subjects in other parts of the empire. It
is said that“ an Englishman in Ireland, Minorca, the Isle of Man, or
the plantations, has no privileges distinct from the natives.” But an
Englishman in Minorca has not the political rights of an English-
man in England. The inhabitants of a conquered territory are there-
fore British subjects, with the local rights of British subjects, but not
with all the rights of Englishmen in the realm.
Halleck, pp. 822, 823; The Flotina, 1 Dod., 450; Calvin's case, Coke,
pt. vii; Callet v. Lord Keith, 2 East., 260; Blankard v. Guldy, 4
Mod., 225.
Effect upon citizenship.
The Supreme Court of the United States seems to have based its
decisions upon the same general principles. The sixth article of the
treaty by which Spain ceded the Floridas to the United States, is as
follows: "The inhabitants of the territories which his Catholic Maj-
esty cedes to the United States, by this treaty, shall be incorporated in
the Union of the United States, as soon as may be consistent with the
principles of the Federal Constitution, and admitted to all the privi-
leges, rights, and immunities of citizens of the United States.” In
delivering the opinion of the Supreme Court on this clause, Chief
Justice Marshall remarks: “This treaty is the law of the land, and
admits the inhabitants of Florida to the enjoyment of the privileges,
rights, and immunities of the citizens of the United States. It is
CONQUEST.
785
unnecessary to inquire, whether that is not their condition, inde-
pendent of treaty stipulation. They do not, however, participate in
political power; they do not share in the government, till Florida shall
become a State." The word citizen is here used in its more extended
sense, as understood in the law of nations, including men, women, and
children, and not in the more restricted meaning attached to it in
municipal law; that is, a person who, under the Constitution and laws
of the United States, has a right to vote for representatives in Con-
gress, and other public officers, who is qualified to fill offices under the
Federal Government, and who may sue and be sued as a citizen of the
United States. There can be little or no doubt that the inhabitants of
Florida, as intimated by Chief Justice Marshall, were entitled, with-
out the treaty stipulation, to the“ privileges, rights, and immunities”
of citizens, in this more extended sense of the term; but their right to
be incorporated in the Union, and participate in political power, was
derived from the treaty, and not a necessary consequence, under the
law of nations, of the transfer of their country and of their allegiance.
Their political power under the Federal Constitution and the laws of
the United States, resulted from the admission of Florida into the
Union as a State, and the political rights of citizenship of the United
States thereby acquired were determined and limited, with respect to
age, sex, color, and condition, by our institutions and laws. It must
also be remarked that a man may become a citizen of the United
States without being a citizen of any particular State, or may be-
come a citizen of a particular State without being a citizen of the
United States.
Halleck, pp. 823, 824; American Ins. Co. v. Canter, 1 Peters, 542.
A
66
Distinction between political and municipal laws.
* The laws of a conquered country,” says Lord Mansfield,“ continue
in force until they are altered by the conqueror; the absurd exception
as to pagans, mentioned in Calvin's case, shows the universality and
antiquity of the maxim. For that distinction could not exist before
the Christian era, and in all probability arose from the mad enthusi-
asm' of the crusades.” This may be said of the municipal laws of the
conquered country, but not of its political laws, or the relations of the
inhabitants with the government. The rule is more correctly and
clearly stated by Chief Justice Marshall, as follows: “On the transfer
of territory, it has never been held that the relations of the inhabi-
tants with each other undergo any change. Their relations with
their former sovereign are dissolved, and new relations are created
between them and the government which has acquired their terri-
tory;—the law, which may be denominated political, is necessarily
changed, although that which regulates the intercourse and gen-
786
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
eral conduct of individuals remains in force until altered by the
newly created power of the State.” This is now a well-settled rule
of the law of nations, and is universally admitted. Its provisions
are clear and simple, and easily understood; but it is not so easy
to distinguish between what are political and what are municipal
laws, and to determine when and how far the constitution and laws of
the conqueror change or replace those of the conquered. And in case
the government of the new State is a constitutional government, of
limited and divided powers, questions necessarily arise respecting the
authority, which, in the absence of legislative action, can be exercised
in the conquered territory after the cessation of war, and the conclu-
-sion of a treaty of peace. The determination of these questions de-
pends upon the institutions and laws of the new sovereign, which,
though conformable to the general rule of the law of nations, affect
the construction and application of that rule to particular cases.
Halleck, pp. 824, 825; Rex. V. Vaughan, 4 Burr, 2500; Calvin's case,
Coke, pt. vii; Atty. Gen. v. Stewart, 2 Meriv., 154; Sprague 1. Stone,
Doug., 38; Sheddon v. Goodrich, 8 Vesey, 482; Mostyn v. Fabrigas, 1
Cowp., 165; Smith v. Brown, 2 Salk, 660; Evelyn v. Forster, 8.
Vesey, 481 ; American Ins. Co., v. Canter, 1 Peters, 542:
Power of King, under English law.
It seems to be a well-settled principle of English law, that a coun-
try conquered by British arms becomes a dominion of the king, in
right of his Crown, and therefore necessarily subject to the legis-
lature—the Parliament of Great Britain; that the king, without the
concurrence of Parliament, may change a part or the whole of the
political form of the government of a conquered dominion, and alter
the old, or introduce new laws into the conquered country; but that
all this must be done subordinate to his own authority in Parliament,
that is, subordinate to legislation; and that he cannot make any
change contrary to fundamental principles; that he cannot, for in-
stance, exempt the inhabitants of the conquered territory from the
power of Parliament, or the laws of trade, or give them privileges
exclusive of his other subjects. Thus, Ireland received the laws of
England by the charters and commands of Henry II., John, Henry
III, Edward I, and the subsequent kings, without the interposition
of the Parliament of England. The same is said of Wales, Berwick,
Gascony, Guienne, Calais, Gibraltar, Minorca, &c. So of New York;
after its conquest from the Dutch, Charles II changed its consti-
tution and political government by letters patent to the Duke of
York. If the king comes to a kingdom by conquest, he may change
and alter the laws of that kingdom; but if he comes to it by title
and descent, he cannot change the laws of himself without the con-
sent of Parliament. The constitutions of most English provinces,
CONQUEST.
787
immediately under the king, have arisen not from grants, but from
commissions to governors to call assemblies. In 1722, Sir Philip
Yorke and Sir Clement Wearge reported, on the assembly of Ja-
maica's withholding the usual supplies, that “if Jamaica was still to
be considered a conquered island, the king had a right to levy taxes
upon the inhabitants; but if it was to be considered in the same
light as the other colonies, no tax could be imposed on the inhabitants
but by an assembly of the island or by an Act of Parliament." They
considered, says Lord Mansfield, the distinction in law as clear, and
an indisputable consequence of the island being in the one state or
in the other. Whether it remained a conquest, or was made a colony,
they did not examine. A maxim of constitutional law, as declared
by all the judges in Calvin's case, and which such men, in modern
times, as Sir Philip Yorke and Sir Clement Wearge took for granted,
will require some authority to shake. But, on the other side, no
book, no saying, no opinion has been cited, and no instance in any
period of history produced, where a doubt has been raised con-
cerning it.
Halleck, pp. 825, 826; Campbell V. Hull, 1 Cowp. 205; Fabrigas v.
Mostyn, 1 Cowp. 165; Callett v. Lord Keith, 2 East., 260.
Powers of executive and legislative branches of conqueror's government.
The right of the king to change the laws of a conquered territory,
after the war, results, according to the decisions of English courts,
from his constitutional power to make a treaty of peace, and con-
sequently to yield up the conquest, or to retain it upon whatever
terms he pleases, provided those terms are not in violation of funda-
mental principles. But the President of the United States can make
no treaty without the concurrence of two-thirds of the Senate, and his
authority over ceded conquered territory, though derived from the
law of nations, is limited by the Constitution and subordinate to the
laws of Congress. It, however, is well settled by the Supreme Court,
that, as constitutional commander-in-chief, he is authorised to form
a civil or military government for the conquered territory during
the war, and that when such territory is ceded to the United States,
as a conquest, the existing government, so established, does not çease
as a matter of course or as a consequence of the restoration of peace;
that, on the contrary, such government is rightfully continued after
the peace, and till Congress legislates otherwise; but that the Presi-
dent may virtually dissolve this government by withdrawing the
officers who administer it; provided, he does not thereby neglect his
constitutional obligation “to take care that the laws be faith fully
executed." He is bound, for example, to prevent the landing of for-
eign goods in the United States out of any collection district and
788
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
without the payment of duties, and to do this he must employ the
constitutional means at his disposal. He may do this through the
government which he has established during the war, by the right
of conquest, and which existed when that conquest was ratified by
peace, or, if he dissolve that government, the constitutional obliga-
tion remains to be performed by other means. So long as that
government continues, with the express or implied sanction of the
President, it represents the sovereignty of the United States, and
has the legal authority to enforce and execute the laws which extend
over such territory. Congress may, at any time, put an end to this
government of the conquered territory, and organise a new one; or it
may permit the people of such territory to form a constitution, and
admit it as a new State into the Union. The power of Congress over
such territory is clearly exclusive and universal, and their legislation
is subject to no other control or limit than the stipulations of ces-
sion and the Constitution. But connected with these general rights
and powers of Congress, there are also obligations and duties. These
are to be ascertained from the law of nations, the stipulations of ces-
sion, and the principles of the Federal Constitution. But so long as
neither Congress nor the President direct otherwise, the govern-
ment established during the war, and existing on the restoration of
peace, continues with the implied consent of both. “The right infer-
ence,” says Mr. Justice Wayne, in delivering the unanimous opinion
of the Supreme Court, “ from the inaction of both, is, that it was
meant to be continued until it had been legislatively changed. No
presumption of a contrary intention can be made. Whatever may
have been the cause of delay, it must be presumed that the delay was
consistent with the true policy of the government." California and
New Mexico were acquired by conquest, confirmed by cession. Dur-
ing the war they were governed as conquered territory under the
law of nations, and in virtue of the belligerent rights of the United
States as the conqueror, by the direction and authority of the Presi-
dent, as commander-in-chief. By the ratification of the treaty of
Guadalupe-Hidalgo, on May 20, 1848, they became a part of the
United States, as ceded conquered territory. The civil governments,
established in each during the war, and existing at the date of the
treaty of peace, continued in operation after that treaty had been
ratified. California, with the assent and co-operation of the existing
government, formed a constitution, which was ratified by its inhabi-
tants, and a State government was put in full operation in December,
1849, with the implied assent of the President, the officers of the ex-
isting government of California publicly and formally surrendering
all their powers into the hands of the newly-constituted authorities.
The constitution so formed and ratified was approved by Congress,
and California was, on September 9, 1850, admitted into the Union
CONQUEST.
789
1
as a State. New Mexico also formed a constitution, and applied to
Congress for admission as a State; the application was not granted;
but on September 9, 1850, New Mexico and the part of California
not included within the limits of the new State were organized into
Territories, with new Territorial governments, which took the place
of those organised during the war, and existing on the restoration of
peace.
Halleck, pp. 827–829; Campbell v. Hall, 1 Cowp., 204; Cross et al. v.
Harrison, 16 Howard, 164; Dred Scott v. Sandford, 16 How., 393.
Effect upon laws.
It seems to be a well-established rule of the law of nations, that, on
the cession of a conquered territory by a treaty of peace, the inhabit.
ants of such territory are remitted to the municipal laws and usages
which prevailed among them before the conquest, so far as not changed
by the constitution or political institutions of the new sovereignty,
and the laws of that sovereignty which proprio vigore extend over
them. This leads us to enquire, first, whether the municipal laws in
force prior to the conquest, and suspended or changed during the war,
are revived ipso facto by the treaty of peace; and, second, what laws.
of the new sovereignty are considered as extending over the acquired
territory immediately on its cession, and without any special provi-
sions to that effect, either in the laws themselves, or as enacted by the
. legislative power. It has already been shown that, according to the
decision of the English courts, the laws of the conquered territory
must be subordinate to the British Constitution, as the king himself
cannot there establish laws, or confer privileges contrary to funda-
mental principles. And there can be little doubt that the Federal Con-
stitution is extended over conquered territory which, by confirmation
or cession, becomes a part of the United States. It is true that the
territory acquired as a conquest is to be preserved and governed as
such, until the sovereignty to which it has passed legislate for it, or
gives it the authority to legislate for itself. In conquests made by
England, this may be done by the commands or letters patent of the
king, and in those made by the United States by the law of Congress.
In the former case, the local government, acting under royal author-
ity, represents the crown, and must act in subordination to Parlia-
ment, and the fundamental principle of the British Constitution. In
the latter case, the local government, acting under the direction of
the President, represents the sovereignty of the United States, to
which the territory has passed. And, as that sovereignty is the United
States, under the Federal Constitution, no powers can be exercised
in that territory, either by the President, or by Congress, which are
opposed to the Federal Constitution, and it necessarily follows that
!
790
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the inhabitants of such territory acquire, immediately on its becoming
a part of the United States, the privileges, rights, and immunities
guaranteed by the constitution. They do not, indeed, thereby acquire
the political rights of citizens, entitling them to vote for representa-
tives in Congress, or to sue and be sued in the Federal courts; but they
thereby become privileged as subjects of the United States, and no
powers opposed to the Federal Constitution can be exercised over
them; they owe an allegiance to the government of the United States,
and are entitled to its protection.
Halleck, pp. 829, 830.
Power of conqueror to change laws.
We have already remarked, that the relations of the inhabitants
of the conquered territory, inter se, are not, in general, changed by the
act of conquest and military occupation; nevertheless, that the con-
queror, exercising the powers of a de facto government, may suspend
or alter the municipal laws of the conquered territory, and make new
ones in their stead. Such changes are of two kinds, viz: those which
relate to a suspension of civil rights and civil remedies, and the sub-
stitution of military laws, and military courts and proceedings; and
those which relate to the introduction of new municipal laws, and new
legal remedies and civil proceedings. There can be no doubt that
when the war ceases the inhabitants of the ceded conquered territory
cease to be governed by the code of war. Although the government of
military occupation may continue, the rules of its authority are essen-
tially changed. It no longer administers the laws of war, but only
those of peace. The governed are no longer subject to the severity of
the code military, but are remitted to their rights, privileges, and
immunities, under the code civil. Hence, any laws, rules, or regula-
tions introduced by the government of military occupation during the
war, which infringe upon the civil rights of the inhabitants, neces-
sarily cease with the war in which they had their origin, and from
which they derived their force. But if this government, during mili-
tary occupation, has granted to the inhabitants rights which they did
not possess under their former laws, or if it has abolished former mu-
nicipal laws deemed odious and oppressive—as, for example, laws
conferring privileges of rank, or distinguishing between the civil
rights of classes and castes—these will not be revived as a necessary
consequence of peace. They may, however, be revived as a conse-
quence of the institutions and laws of the new sovereignty; and even
rights and immunities, not suspended or infringed during the war,
may entirely cease on the treaty of peace, as a consequence of the ces-
sion, and the introduction of the civil government and civil jurispru-
dence of the new sovereign.
Halleck, pp. 830, 831.
CONQUEST.
791
Laws extending over conquered territory.
We will next consider what laws of the new sovereign extend over
the ceded conquered territory without legislative action, or any spe-
cial provisions to that effect in the laws themselves. When a coun-
try which has been conquered is ceded to the conqueror by the treaty
of peace, the plenum et utile dominium of the conqueror will be con-
sidered as having existed from the beginning of the conquest. When
it is said that the law. political ceases on the conquest, and that the
law municipal continues till changed by the will of the conqueror, it
is not meant that these latter laws, proprio vigore, remain in force,
but that, it is presumed, the new political sovereign has adopted and
continued them as a matter of convenience. They do not derive any
force from the will of the conquered, for the person capable of hav-
ing and expressing a will—the body politic, or law-making power
of the conquered—is extinguished by the conquest. When, there-
fore, we come to pronounce upon the force of a law of the conquered
people after the conquest, and to determine whether it has been
tacitly adopted by the conqueror, we must look to the character of its
provisions, and compare them with the laws and institutions of the
conquering State; that is, with the will of the conqueror as expressed
by himself in similar matters. Whatever is in conflict with, or
directly opposed to such expressions of his will, we can not presume
to have been adopted by his tacit consent. Hence, Lord Coke says,
if a Christian king should conquer an infidel country, the laws of the
conquered, ipso facto, cease, because it is not to be presumed that a
Christian king has adopted the laws of an infidel race. But, where
there is no such conflict in the institutions and laws of the two coun-
tries, those of the conquered which regulate personal relations, com-
mercial transactions, and property in all its modes of transfer and
acquisition, are presumed to have been adopted as a matter of con-
venience. This rule of international law is both reasonable and just.
Each case must rest upon its own basis, and be judged of by its own
circumstances. From this view of the jurisprudence of the conquered
country, we must determine what laws of the acquired territory re-
main in force, and what laws of the conqueror, proprio vigore, ex-
tend over such territory.
Halleck, pp. 831, 832; Calvin's Case, Coke, pt. 7.
Effect upon municipal laws.
The English courts make a distinction between ceded or conquered
territory, and territory acquired by discovery, or occupancy, and
peopled by the discoverer. British colonists are considered as car-
rying with them such laws of their sovereign as are beneficial to the
colony and applicable to the new condition of the colonists; but penal
792
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
laws, inflicting forfeitures and disabilities, laws of tithes, bank-
ruptcy, mortmain, and police do not extend to colonies not in esse.
And laws passed after the settlement of a discovered or occupied
country do not affect such colony, without special provisions to that
effect, unless they relate to the exercise of the powers of the sovereign
with regard to foreign relations, navigation, trade, revenue, and ship-
ping. But the rule is different with respect to territory acquired by
cession or conquest, for the municipal laws of such territory at the
time of its acquisition remain till changed by competent authority,
and the subjects of the new sovereignty who enter such newly- ac-
quired territory do not, in general, carry with them the laws of their
sovereign; but with respect to their rights and relations inter se, they
are in the same condition as the inhabitants of such territory; that is,
they are governed by the laws and usages of the country at the time
of the conquest or cession. “Whoever purchases, lives, or sues there
puts himself under the laws of the place; an Englishman in Ireland,
Minorca, the Isle of Man, or the plantations, has no privilege distinct
from the natives."
Halleck, pp. 832, 833; Atty.-Gen. v. Stewart, 2 Meriv., 143; Darnes v.
Painter, Freem., 175.
Effect upon municipal laws.
There can be no doubt of this general principle of English Com-
mon Law—that the inhabitants of territory acquired by cession or
conquest are governed in their relations inter se by the municipal
laws of such territory in force at the time of the cession or conquest,
and that statutes previously passed do not, in general, extend proprio
vigore over such territory. Nevertheless, it is equally true that some
of the laws of the new sovereignty do extend over such newly-ac-
quired territory, and that the existing municipal laws of such terri-
tory are, in some degree, modified and changed by the acts of acquisi-
tion, and without any special decree, or statute, of the executive or
legislative departments of the new sovereignty. Thus, any muni-
cipal laws existing in such territory, which are in violation of treaty
stipulations with foreign nations, or of the general laws of trade,
navigation and shipping, or which give privileges exclusive of other
subjects, are not only void in themselves, but the king even cannot
introduce any which are contrary to fundamental principles. How-
ever absurd the exception as to pagans, mentioned in Calvin's case,
there can be no doubt of the correctness of the general rule, that the
laws of the conquered territory which are contrary to the funda-
mental principles of the government of the conqueror, cease, on the
complete acquisition of the conquered territory, because they are op-
posed to the already expressed will of the conqueror. All other
CONQUEST.
793
municipal laws continue in force till changed by the same will sub-
sequently expressed; that is, the king himself may change these laws,
or he may, by his charters and commands, authorize the conquered
country to do so. Such authority is derived directly from the crown,
and without the interposition of Parliament.
Halleck, pp. 833, 834.
1
Laws extending to ceded territory.
The Supreme Court of the United States, where questions of this
kind have come before that tribunal, have adopted the decisions of
the English courts, so far as applicable to our system of government.
While recognising the general principle that the laws of the con-
quered territory remain in force after the cession, they distinctly
assert that the ceded territory becomes instantly bound and privi-
leged by the laws which Congress has previously passed to raise
revenue from duties on imports and tonnage; and that such territory
is subject to the Acts of Congress, previously made to regulate foreign
commerce with the United States, without other special legislation
declaring them to be so. And although Congress may not have es-
tablished collection districts or custom houses, or authorised the ap-
pointment of officers to collect the revenue accruing upon the im-
portation of foreign dutiable goods into that territory, nevertheless,
it may be legally demanded and lawfully received by the officers of
the government, which was organized in such territory by the right of
conquest, and existing at the date of the cession. California became
a part of the United States as a ceded conquered territory, by the
treaty which was ratified on May 30, 1848; but the Act of Congress,
including San Francisco within one of the collection districts of the
United States, was not passed till March 3, 1849, and the collector
iuthorised by law to be appointed for that port did not enter upon
The duties of his office till November 13, 1849. The ratification of
the treaty was not officially announced in California till August 17,
1848. The civil government of California, which had been organized
during the war, by right of conquest and military occupation, con-
tinued to collect duties under the war tariff till officially notified of
the ratification of the treaty of peace; it then declared that "the
tariff of duties for the collection of military contributions will im-
mediately cease, and the revenue laws and tariff of the United States
will be substituted in its place," and continued to enforce these laws
and to collect the revenue accruing under them upon the importation
of foreign dutiable goods into California, until November 13, 1849,
when the collector, duly appointed under the authority of an Act of
Congress, entered upon his duties. The importers of such dutiable
goods denied the legality of these collections, and protested against
110678-19-51
794
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the exaction of duties, and subsequently brought suit against the
officers of the civil government to recover the moneys so collected,
with interest. The legality of the acts of these officers was sustained
by the unanimous opinion of the Supreme Court of the United States;
and Mr. Justice Wayne, in delivering the opinion of the court, said
that the officers, in coercing the payment of duitable goods landed in
California, “had acted with most commendable integrity and intelli-
gence.”
Halleck, pp. 834, 835; Cross v. Harrison, 16 How. 201.
I
Laws extending to conquered territory.
There is one point in this decision deserving of particular notice,
with respect to the operation of laws which extend, proprio vigore,
over ceded conquered territory. A statute law of the United States,
when no time is fixed in the law itself, takes effect in every part of
the Union from the very day it is passed. Not so, however, with
the operation of existing revenue laws over newly acquired territory,
which, though a part of the United States, is not within the Union.
As already remarked, nearly three months elapsed between the ratifi-
cation of the treaty of cession and its official announcement in Cali-
fornia. During that interval, tonnage and impost duties were im-
posed and collected according to the war tariff, instead of the tariff
of the United States. If the revenue laws extended over California,
eo instante, on the ratification of the treaty by which that territory
was acquired, these duties were unlawfully collected. It was so
claimed by those who had paid them, and suit was brought for their
recovery. But Mr. Justice Wayne, in delivering the opinion of the
Supreme Court on this question, remarked: “It will certainly not be
denied that these instructions (imposing the war tariff] were bind-
ing upon those who administered the civil government in California,
until they had notice from their own government that a peace had
been finally concluded. Or that those who were locally within its
jurisdiction, or who had property there, were not bound to comply
with those regulations of the government, which its functionaries
were ordered to execute. Or that any one would claim a right to in-
troduce into the territory of that government foreign merchandise,
without the payment of duties which had been originally imposed
under belligerent rights, because the territory had been ceded by the
original possessor and enemy to the conqueror. Or that the mere
fact of a territory having been ceded by one sovereignty to another,
opens it to a free commercial intercourse with all the world, as a
matter of course, until the new possessor has legislated some terms
upon which that may be done. There is no such commercial liberty
known among nations, and the attempt to introduce it in this in-
stance is resisted by all of those considerations which have made
CONQUEST.
795
foreign commerce between nations conventional. The treaty that
gives the right of commerce is the measure and rule of that right.
The plaintiffs in this case claim no privilege for the introduction
of their goods into San Francisco, between the ratifications of the
treaty with Mexico and the official announcement of it to the civil
government in California, other than such as that government per-
mitted under the instructions of the government of the United
States.
Halleck, pp. 835, 836; Matthews v. Zane, 7 Wheat., 104; the Ann, 1 Gallis,
62; Cross et al. v. Harrison, 16 Howard, 191.
Private property.
It has already been remarked that, in the transfer of territory by
conquest or cession, the political rights of its inhabitants may be
essentially changed. This results from a difference in the powers
and character of governments, as depending upon their constitutions
or fundamental laws. The new government may not be capable of
receiving or exercising all the powers of the old one, or it may not
extend to the governed all the political rights which they enjoyed
under the former sovereign. But a change of sovereignty is not, in
modern times, permitted to effect any change in the rights of pri-
vate property. What was the property of the former sovereign
becomes the property of the new one, and what was the property of
individuals before, remains private property, notwithstanding the
conquest or cession. “The modern usage of nations," says Chief
Justice Marshall, speaking of the transfer of a country from one
government to another," which has become a law, would be violated;
that sense of justice and of right which is acknowledged and felt by
the whole civilised world would be outraged, if private property
should be generally confiscated, and private rights annulled. The
people change their allegiance; their relation to their ancient sov-
ereign is dissolved; but their relations to each other, and their rights
of property, remain undisturbed.” The rule of international law,
thus clearly enunciated by the Supreme Court of the United States
in 1833, has since been repeatedly recognised in the decisions of the
same tribunal.
Halleck, pp. 836, 837; United States v. Perchman, 7 Peters, 87; Mitchel v.
the United States, 9 Peters, 734; Strother 1. Lucas, 12 Peters, 38; New
Orleans v. the United States, 10 Peters, 720.
Private rights in lands.
As the new State merely displaces the former sovereignty, and
acquires, by cession or complete conquest, no claim or title whatever
to private property, whether of individuals, municipalities, or cor-
porations, and as it assumes the duties and obligations of the former
796
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
sovereign with respect to private property within such acquired ter-
ritory, it is consequently bound to recognise and protect all private
rights in lands, whether they are held under absolute grants or
inchoate titles, for property in land includes every class of claim to
real estate, from a mere inceptive grant to a complete, absolute, and
perfect title. A mere equity is protected by the law of nations as
much as a strictly legal title. In the words of Chief Justice Mar-
shall, “the term 'property,' as applied to lands, comprehends every
species of title, inchoate or complete. It is supposed to embrace
those rights which lie in contract; those which are executory; as well
as those which are executed. In this respect the relation of the in-
habitants to their government is not changed. The new govern-
ment takes the place of that which has passed away."
Halleck, pp. 837, 838; Soulard et al. v. the United States, 4 Peters, 512;
Michel et al. v. the United States, 9 Peters, 733; United States v. Perch-
man, 7 Peters, 51; Chouteau's heirs r. the United States, 9 Peters, 137.
Remedial acts.
There can be no question of the correctness of the rule of inter-
national law as thus laid down by Chief Justice Marshall, and repeated
in numerous decisions of the Supreme Court of the United States.
It not unfrequently happens, however, that much injustice and incon-
venience will result to the owners of property in a ceded or conquered
territory, by the transfer of themselves and their property from one
system of laws to another very different from the first, and wholly
inadequate to afford remedies for a violation of the rights of prop-
erty. And as the law of nations and the usage of the civilized
world impose upon the new sovereignty the duty to maintain and
protect the property of the conquered inhabitants, it is bound to
take the necessary steps to clothe equities with a legal title, so as to
bring them within the scope of legal remedies under its own laws.
It is with this view that Congress has usually passed remedial Acts
for the ascertainment and recognition of lands of private ownership
in territories acquired by the United States. Although the mainte-
nance of such property may be fully guaranteed by the law of nations
and the stipulation of treaties, yet, in order to place it under the
careful guardianship of our municipal laws, it is necessary to invest
it with a new attribute of a legal title, without which the owner may
be unable either to maintain his own possession or eject an intruder.
For example, a right or title to lands which, under Spanish or Mexican
law, is abundantly sufficient for the security and protection of the
owner in his rights, may be utterly useless for such purposes under
our laws, as it neither secures him in the possession and enjoyment
of his property, nor enables him to bring a suit to eject an aggressor.
A refusal or neglect to pass the necessary remedial acts in such cases,
CONQUEST.
797
so as to invest equities with such legal attributes as will place all
private property, of whatsoever description, under the guardianship
of our laws, would be a violation of the obligations imposed upon us
by the law of nations and the usage of the civilized world. A delay
in applying such remedies is often equivalent to a denial of justice,
or a confiscation of private property, and is, therefore, a breach of
public law and a violation of national faith.
Halleck, pp. 838, 839.
Completeness of conquest.
It follows, from the principles laid down in this and the preceding
chapters, that complete conquest, by whatever mode it may be per-
fected, carries with it all the rights of the former government; or, in
other words, the conqueror, by the completion of his conquest, be-
comes, as it were, the heir and universal successor of the defunct or
extinguished State. As his rights are no longer limited to mere
occupation, or to what he has taken physically into his possession,
they extend not only to the corporeal property of the State, as real
estate and movables, but also to its incorporeal property, as debts, etc.
And as his imperium has become established over the whole !State, he
is considered, in law, as in possession of the things (corpora), and
the rights (jura), to things which appertain to such imperium, and
may use and dispose of them as his own. It was on this ground that
the validity of Alexander's gift to the Thessalonians was principally
sustained, and those who advocated the claim of Thebes, did so,
mainly, on the supposition that the conquest was not complete, and
that the absolute and entire dominion over the universal successor-
ship to Thebes had not accrued to Alexander. Jurists have much
more difficulty in agreeing upon the question of the completion of
the conquest, prior to the restoration of the former sovereign, than
upon the legal consequences to be deduced from the conquest when
complete; and it is only in case of a restoration that any question
arises with respect to the right of the conqueror to dispose of either
the domains or debts of the conquered State.
Halleck, p. 839.
In case of revolution.
As to the public domain and private rights of property. If the
revolution be successful, and the internal change in the constitution
of the State is finally confirmed by the event of the contest, the public
domain passes to the new government; but this mutation is not neces-
sarily attended with any alteration whatever in private rights of
property.
It may, however, be attended by such a change: it is competent for
the national authority to work a transmutation, total or partial, of
798
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the property belonging to the vanquished party; and if actually con-
fiscated, the fact must be taken for right. But to work such a trans-
fer of proprietary rights, some positive and unequivocal act of con-
fiscation is essential.
Wheaton, pp. 49, 50:
Source of title.
The title of almost all the nations of Europe to the territory now
possessed by them, in that quarter of the world, was originally derived
from conquest, which has been subsequently confirmed by long pos-
session and international compacts, to which all the European States
have successively become parties. Their claim to the possessions held
by them in the New World, discovered by Columbus and other ad-
venturers, and to the territories which they have acquired on the
continents and islands of Africa and Asia, was originally derived
from discovery, or conquest and colonization, and has since been con-
firmed in the same manner, by positive compact. Independently of
these sources of title, the general consent of mankind has established
the principle, that long and uninterrupted possession by one nation
excludes the claim of every other. Whether this general consent
be considered as an implied contract, or as positive law, all nations
are equally bound by it; since all are parties to it; since none can
safely disregard it without impugning its own title to its possessions;
and since it is founded upon mutual utility, and tends to promote the
general welfare of mankind.
Wheaton, pp. 240, 241.
Private property of citizens.
When this change has taken place [completed conquest], it is to
be observed that the relations of war give place to those of peace,
and military authority to civil administration. There is no reason,
therefore, why the State should confiscate the property of its new
subjects any more than of its old subjects; for the fact, that they were
formerly enemies, is not a crime or penal offence. Nations now
respect the obligation of a citizen or subject to sustain his own State
in war, and he is treated by the opposite belligerent as a prisoner of
war,-in other words, as a lawful belligerent, and not as a criminal.
(This reasoning does not apply to enemies in a civil war which has
its origin in rebellion; for that is, in law, a criminal offence.) It
follows, therefore, that the private property of citizens is not con-
sidered as transferred by the completed conquest to the conquering
State. It is a distinct question, how far the completed conquest
affects acts of ownership done by the conquering State while in hostile
military occupation. Not only does the State, now become the sov-
ereign, respect private rights and titles, but is bound to make laws
CONQUEST.
799
.
and regulations to insure to individuals the means of exercising and
enjoying their rights, appropriate to the new political system under
which they have passed.
Wheaton, p. 434, Dana's note 169.
Completed conquest supposes the conquering power to have become
the permanently established sovereignty of the country. This may
be either by a cession from the former sovereign, or by a practical
acquiesence by him or by the people of the territory in its subjection
to the conquering State, or by the entire extinction of the political
existence of the conquered State.
Wheaton, p. 434, Dana's note 169.
Political laws of the former State.
Political laws and systems imply a reciprocal relation between citi-
zens and the body politic. By the completed conquest, the former
body politic has ceased to exist. Consequently, the former political
system disappears, and a new one takes its place. And the new
political system is established and regulated by its own force and on
its own principles. The political and civil rights of the inhabitants
of the country depend on the provisions of the new system, in the
absence of treaty stipulations on the subject.
Wheaton, pp. 434, 435, Dana's note 169.
Allegiance to the conquering State.
In the absence of any treaty stipulations on this point, it is con-
sidered that the citizens of the conquered country owe absolute
allegiance to the new State. If it is a bare case of conquest, the
conqueror, now become the permanent sovereign, can surely forbid
the departure of former citizens from the country, and claim sover-
eign rights over them. In the case of a title resting solely on cession,
it is understood that the former citizens have the option to stay or
leave the country, and the continuance of their domicil is conclusive
on the obligation of permanent allegiance.
Wheaton, p. 435, Dana's note 169.
Municipal private laws.
The reasons for considering the former political laws as abrogated
do not apply to the municipal laws, which regulate the private rela-
tions of individuals to each other, and their private rights of prop-
erty. The change of sovereignty does not obliterate the subject-mat-
ters of property or obligations, nor the parties to the rights, duties,
or compacts; and, in respect to these things, there is a permanent
necessity for an uninterrupted existence of laws of some kind. AC-
cordingly, it is held that the municipal private code remains in force.
Yet it is not proprio vigore, or by the will of the people of the con-
800
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
quered country, but by the acquiesence of the new sovereignty, which
is held to intend the continuance of such laws in the absence of new
laws displacing them.
Wheaton, p. 435, Dana's note 169.
Property of the conquered State.
The conqueror succeeds to the public property of the conquered
State, of whatever character, whether movable or immovable, cor-
poreal or incorporeal, lying in possession or in right of action. It
can, of course, give valid titles to it, and valid acquittances to debtors
of the former State; and the debtors are bound to pay their debts to
the new State, as the successor and representative of the old. The
notorious case of the refusal of the Elector of Hesse Cassel to recog-
nize the sale of crown-lands made by the King of Westphalia, was
a violation of this principle. His State was conquered by Napoleon
in 1806, who made a complete conquest of it, and incorporated it into
the Kingdom of Westphalia, which was recognized as a sovereignty
by the treaties of Tilsit and Schonbrunn, and by the public law of Eu-
rope for not less than seven years. When the Elector was restored to
his throne by the treaty of Vienna, he retook possession of the former
crown-lands, which his own subjects had bought of the King of West-
phalia, and 'refused to recognize their titles, or to make them any
pecuniary allowance. He refused to permit his courts to pass upon
the question, or to leave it to arbitration; and the injured parties did
not succeed in getting either the parties to the treaty of Vienna, or
the Germanic Confederation, to interfere for their redress. The
course of the Elector has been condemned by publicists.
Wheaton, 435, Dana's note 169.
Retroactive effect.
The completed conquest operates to confirm and complete the
rights and titles which the conquering power may have given, by
virtue of previous belligerent occupation, to the public property of
the conquered State. Such titles, being given as and for absolute
titles, yet, in their nature, subject to the chances and final results of
the war, take their date, after the complete conquest, from the
original grant. As to the alienations of public property by virtue
of belligerent occupation, vide infra.
Wheaton, p. 436, Dana's note 169.
Right of conquest.
Natural justice knows nothing of a right of conquest in the broad
sense of that term, that is, of mere superior force, carrying with
it the license to appropriate territory, or to destroy national life.
Yet. in fact, nations accept, if they do not justify, such a right of
conquest. The reasons for this are, in general, derived from the
CONQUEST.
801
war.
rule, that it is officious and impossible for nations to sit as judges
over each other's conduct, or in other words, from the independence
of nations. (88 37, 115.) But more particularly (1.) in the exer-
cise of the right of redress it may be necessary to strip a wrong-
doer of a portion of his territory; or in the exercise of the right of
self-protection, and, possibly, of punishment, it may be lawful to
deprive him of the means of doing evil. (2.) The spirit of conquest
generally urges one of these pleas in its defense, over the validity
of which, as we have said, nations may not sit in judgment.
(3.) Treaties generally perfect the title which possession or con-
quest begins. (4.) When a settled state of things follows a con-
quest, it is usually acquiesced in, because, as has been seen, if nations
repaired each other's wrongs, the way would be open for perpetual
Thus international law acknowledges the fact of conquest
after it has become a permanent fact in the world's history, and in
some degree, the right also.
Yet the mere fact of having occupied territory or subjugated its
inhabitants, can be no sufficient ground in justice, even in a just war,
for the exercise of the right of conquest. Redress and punishment
ought not to exceed due limits, nor ought self-protection to demand
an exorbitant amount of security. In accordance with this the
spirit of conquest is regarded by the nations as the spirit of robbery,
and as hostility to the human race. This is shown by their combina-
tions to resist it, as in the wars against Louis XIV. and Napoléon;
by their protests against acquisitions regarded as unjust, and against
alliances formed for the injury of weak states; by the pretexts with
which aggressors seek to shield themselves from the condemnation
of the world; and by the occasional consent of victorious nations to
give a price for territory acquired in war; as when the United States
paid a sum of money to Mexico for lands ceded at the peace of
1848.
Woolsey, pp. 21, 22.
Effect on private rights.
When a treaty cedes to a conqueror a part of the territory of a
nation, the government is under no obligation to indemnify those
who
may suffer by the cession. What the conqueror acquires in such
a case is the sovereignty. The old laws continue until repealed by
the proper authorities. Private rights remain, or ought to remain,
unimpaired.
Woolsey, p. 266.
The question may be asked whether the party making such a ces-
sion of inhabited territory is under any pledge to secure the new-
comer in possession. Or, in other words, must the former do any-
802
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
thing beyond renouncing his rights of sovereignty over the territory,
and leaving it free and open to the new sovereign. To us it appears
that this is all he is bound to do. If, then, the inhabitants should
resist and reject the new sovereign, as they have an undoubted right
to do,--for who gave any state the right to dispose of its inhabi-
tants,—the question now is to be settled between the province or
territory and the conqueror.
Woolsey, p. 266.
When an invader exceeds his legal powers, when for example he
alienates the domains of the state or the landed property of the
sovereign, his acts are null as against the legitimate government.
Such acts are usually done by an invader who intends to effect a con-
quest, and supposes himself to have succeeded. Whether therefore
they are valid or invalid in a given instance depends solely upon the
strength of the evidence for and against his success.
Hall, pp. 508, 509.
Elements of conquest.
Conquest consists in the appropriation of the property in, and of
the sovereignty over, a part of the whole of the territory of a state,
and when definitively accomplished vests the whole rights of prop-
erty and sovereignty over such territory in the conquering state.
As in the case of other modes of acquisition by unilateral acts, it
is necessary to the accomplishment of conquest that intention to
appropriate and ability to keep shall be combined. Intention to
appropriate is invariably, and perhaps necessarily, shown by a
formal declaration or proclamation of annexation. Ability to keep
must be proved either by the conclusion of peace or by the establish-
ment of an equivalent state of things; the conqueror must be able to
show that he has solid possession, and that he has a reasonable prob-
ability of being able to maintain possession, in the same way and
to much the same degree as a political society which claims to be a
state must show that it has independence and a reasonable probability
of maintaining it. A treaty of peace by which the principle of uti
possidetis is allowed to operate affords the best evidence of conquest,
just as recognition of the independence of a revolted province on the
part of the mother country is the best evidence of the establishment of
a new state; but possession which is de facto undisputed, and the
lapse of a certain time, the length of which must depend on the
circumstances of the case, are also admitted to be proof when com-
bined; and recognition by foreign states, though in strictness only
conclusive, like all other unilateral acts, against the recognising states
themselves, affords confirmation which is valuable in proportion to
the number and distinctness of the sources from which it springs.
CONQUEST.
803
Notwithstanding the necessary uncertainty in the abstract of
evidence supplied by possession and recognition, the fact of conquest
is generally well marked enough to be unquestioned. One instruc-
tive modern case however exists in which the conclusiveness of an
alleged conquest was disputed. In the beginning of the present cen-
tury the Elector of Hesse Cassel held as private property domains
within his own territory, and sums lent on mortgage to subjects of
other German states. Shortly after the battle of Jena he was
expelled from his dominions by French troops, and he did not return
until French domination in Germany was put an end to by the
battle of Leipzig. For about a year after its occupation Hesse Cassel
remained under the immediate government of Napoleon; it was then
handed over by him to the newly-formed kingdom of Westphalia,
the existence of which was expressly recognised by Prussia and
Russia in the treaty of Tilsit and, through the maintenance of
friendly relations, by such other European states as were at peace
with France and its satellites. Napoleon intended to effect a con-
quest, he dealt with the territory which he had entered as being con-
quered, and was acknowledged by a considerable number of states
to have made a definitive conquest. One of his acts of conquest,
effected before the transfer of the territory to the kingdom of West-
phalia, was to confiscate the private property of the Elector, which,
as the latter after his expulsion had taken service in the Prussian
army, was seized apparently as that of a person remaining in arms
against the legitimate sovereign of the state. However revolting it
may be morally that Napoleon should have taken advantage of the
position which he had acquired through his own wrong-doing to
inflict further injury upon a man whom he had already plundered
without provocation, there can be no doubt that if his conquest was
complete he was within his strict legal rights. Was then his con-
quest a complete one? The question was first raised, in a suit brought
by the Elector after his return, before the Mecklenburg courts, as
creditor of the estate of a certain Count Hahn Hahn. The Count
had borrowed money on mortgage from the Elector before his expul-
sion, and had obtained a release in full from Napoleon on payment
of a portion of the debt. The Elector contested the validity of the
discharge. The Mecklenburg court appears not to have given judg-
ment, but to have remitted the matter to the University of Breslau,
whence it was successively carried by way of appeal to two other
German Universities. The ultimate judgment affirmed the legality
of the act of confiscation on the grounds
1. That the restored government of the Elector could not be re-
garded as a continuation of his former government, because he had
not been constantly in arms against Napoleon during his absence
from Hesse Cassel, and because he had been treated by the peaces
午
​804
>
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
of Tilsit and Schönbrunn as politically extinct, the kingdom of
Westphalia having been recognised as occupying the place of the
electorate.
2. That Napoleon had in fact effected a conquest, and consequently
had a right as sovereign to confiscate the property of an active enemy
of the state.
3. That even if the property of the Elector could have been held
to revert with the conclusion of peace, a restored owner, 'according
to the letter of the Roman law,' must take his property as he finds it,
without compensation for the damage which it may have suffered in
the interval.
The above judgment appears to have met with very general ap-
proval; and though the Congress of Vienna refused to interfere to
prevent the resumption by the Elector of alienated domains within
the electorate, there is nothing to show that any of the powers repre-
sented there considered his action to be right under the circumstances
of the particular case; Prussia pronounced herself adversely to it.
There can indeed be no doubt that the title which Napoleon assumed
himself to have acquired by conquest became consolidated by lapse of
time, and that alienations made in virtue of it were consequently
good. It does not follow from this that the confiscation was in the
first instance valid. It took place immediately after the conclusion
of the treaties of Tilsit. Although it was impossible to suppose that
Hesse Cassel would ever be able to shake off the yoke of France for
herself, there was nothing in the aspect of Europe to induce the be-
lief that the settlement of Germany then made was a final one; war
still continued with England; it was certain that war would sooner
or later be renewed on the continent, and it was necessarily uncer-
tain how soon it might arrive; finally, most of the recognitions given
to the kingdom of Westphalia were of little value, because they were
given by states which were hardly free agents in the matter. In
such a state of things time was absolutely necessary to consolidate the
conquest. At first Napoleon and those who derived their title from
him were merely occupiers with the pretensions of conquerors. But
with the lapse of time the character of occupier insensibly changed
into that of a true conqueror; and when the fact of conquest was
definitively established, it validated retroactively acts which the con-
queror had prematurely done in that capacity. It would be idle to
argue, in all the circumstances of the case, that possession had not
hardened into conquest during the interval between 1806 and 1813.
Hall, pp. 587-591.
The effects of a conquest are:
1. To validate acts done in excess of the rights of a military occu-
pant between the time that the intention to conquer has been signified
and that at which conquest is proved to be completed.
CONQUEST.
805
2. To confer upon the conquering state property in the conquered
territory, and to invest it with the rights and affect it with the obli-
gations which have been mentioned as accompanying a territory
upon its absorption into a foreign state.
3. To invest the conquering state with sovereignty over all sub-
jects of a wholly conquered state and over such subjects of a partially
conquered state as are identified with the conquered territory at the
time when the conquest is definitively effected, so that they become
subjects of the state and are naturalised for external purposes, with-
out necessarily acquiring the full status of subject or citizen for in-
ternal purposes. The persons who are so identified with conquered
territory that their nationality is changed by the fact of conquest,
are of course mainly those who are native of and established upon
it at the moment of conquest; to these must be added persons native
of another part of the dismembered state, who are established on
the conquered territory, and continue their residence there. Cor-
relatively persons native of the conquered territory, but established
in another part of the state to which it formerly belonged, ought to
be considered to be subjects of the latter.
Hall, p. 592.
1
Effect upon inhabitants.
In strictness, the effects of a cession, of a treaty concluded on the
basis of uti possidetis, and of conquest, upon the inhabitants of ter-
ritory which changes hands at the conclusion of a war are identical,
though for somewhat different reasons in the three cases. In each
case the population is subjected to the sovereignty of the state by
which the territory is acquired; but while in the cases of bare con-
quest, and of conquest confirmed by a treaty grounded on the prin-
ciple of uti possidetis, the sovereignty is simply appropriated by the
conquering state, in that of express cession a transfer of it is effected
through an act of the state making the cession, by which the mem-
bers of that state are bound.
It has however been usual in modern treaties to insert a clause se-
curing liberty to inhabitants of a ceded country to keep their nation-
ality of origin. In the case of persons native of, and established in,
the ceded territory, and even in the case of persons who are estab-
lished in, without being natives of, the ceded territory, this liberty
is commonly saddled with the condition that they shall retire within
the territory remaining to their state of origin, a certain time being
allowed to them to arrange their affairs and dispose of landed and
other property which they may be unable to take with them. In the
most recent treaty of cession a more liberal treatment was accorded;
natives of Alsace and the ceded districts of Lorraine, who chose to
retain their French nationality, though compelled to emigrate, were
806
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
allowed by the treaty of Frankfurt to keep their landed property
within the ceded territory.
Residence in foreign countries being a frequent incident of modern
life, withdrawal from a ceded district is not conclusive of the in-
tention of the person withdrawing to reject the nationality of the
conquering state. It is therefore usual to exact an express declara-
tion of intention, as a condition of preservation of the nationality
of birth, from persons against whom there is a presumption of
changed nationality,--that is to say, from persons born within the
territory and living there, and from persons born within the terri-
tory but absent at the date of annexation. There being no such pre-
sumption against persons born in another part of the state making
the cession, the simple fact of withdrawal is in their case sufficient.
Hall, 593–595.
Effect of conquest in general.
The complete conquest of a State, in whole or in part—the distinc-
tion between conquest and mere military occupation must be kept in
mind-gives rise to many important questions of public and private
rights of property in their active and passive aspects.
Thus one may ask:
(1) Whether conquest confers on the victor the corporeal and in-
corporeal property of the conquered State both within and without
the latter's jurisdiction?
(2) What is the effect of conquest on purely private rights of prop-
erty?
(3) What is the effect of conquest on the rights of individuals
against the extinct State arising from obligations?
(4) What is the effect of conquest on rights of a mixed public and
private nature
The first two cases can be disposed of without much difficulty.
(1) The rights of a conqueror could hardly be better expressed
than in the words of Vice-Chancellor James in U. S. v. McRae:1
“I apprehend it to be the clear public universal law, that any Gov-
ernment which de facto succeeds to any other Government, whether
by revolution or restoration, conquest or reconquest, succeeds to all
the public property, to everything in the nature of public property,
and to all rights in respect of the public property of the displaced
Power, whatever may be the nature or origin of the title of such dis-
placed Power. ... But this right is the right of succession, is the
right of representation, is a right not paramount but derived, I will
not say under, but through, the suppressed and displaced authority,
and can only be enforced in the same way, and to the same extent,
1 L. R. 8 Eq. 75. See also U. S. A. v. Prioleali, 2 H. and M. 563. King of the Two
Sicilies v. Willcox, 1 Sim. N. S. 327.
CONQUEST.
807
and subject to the same correlative obligations and rights as if that
authority had not been suppressed and displaced, and was itself seek-
ing to enforce it."
(2) Conquest does not disturb the private rights of property of
the citizens of the conquered territory. “It is very unusual even in
cases of conquest for the conqueror to do more than displace the
sovereign and assume dominion over the country. The modern usage
of nations, which has become law, would be violated; that sense of
justice and of right which is acknowledged and felt by the whole
world would be outraged, if private property 1 should be generally
confiscated and private rights annulled."
An attempt has been made to draw a distinction between the effects
of conquest and of cession. However that may be in the domain of
constitutional law, it is conceived that according to the law of nations
private property is equally sacred in either case.
(3) The subject of the rights of property consisting in the obliga-
tions of the displaced State is not an easy one, especially as Anglo-
American case law does not throw much light on it. Cook v. Spriggs
and West Rand Central Gold Mining Co. v. Rex * decide questions
of constitutional rather than of international law and are not au-
thorities in the latter except in so far as they define the debatable
line between the two. These cases have been adversely criticised, ,
but, it is submitted, unjustly so. In leaving the decision of all the
mixed questions of propriety, magnanimity, wisdom, public duty, in
short, of policy in the broadest and wisest sense of the word,” that
arise on conquest, to the Crown, the Courts have wisely recognised
the limitations of the English law of evidence and procedure.
The fate of the various obligations of the conquered State has
now to be considered in the light of custom and reason. What, for
example, becomes of the Public Debt, and of loans contracted for
carrying on the war which ended in the conquest? In a country
where rivers belong to the State concessions may have been given
to work them for electric power. There are also to be considered
the claims of the pensioners of the former State, of holders of postal
orders, and of depositors in State savings banks. The farmer whose
horse was requisitioned for the war by the conquered State will
seek redress.
These obligations are often spoken of as if they were all on the
same plane, but it will appear on investigation that very different
principles apply to their various classes.
Chi, and
1 U. S. v. Percheman, 7 Peters, 51. See also U. S. v. Moreno, 1 Wall., 400.
Pacific Ry, Co. v. McGlinn, 114 U. S. 546.
2 W. Rand Central Gold Mining Co. v. Rex, L. R. (1905), 2 K. B. on p. 411.
3 L. R. (1899), A. C. 572.
4 L. R. (1905), K. B. D. 391.
808
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Different theories have been advanced on the nature of the suc-
cession of State to State. Grotius, assimilating it entirely to the suc-
cession of Civil Law, lays down that “with regard to the continua-
tion of ownership, both public and private, it is undoubted law that
the person of the heir should be regarded as one with that of the
deceased.” 1
Others, like Max Huber and Professor Westlake, consider that
“the notion of succession is a general one in law, and belongs ex-
clusively neither to private nor to public law," and they proceed
to distinguish the civil successor who steps into the rights and ob-
ligations of his predecessor, as if he were himself the predecessor,
from the successor of international law, who steps into them as if
they were his own.2
As a matter of fact, the modern State is a complex organism ful-
filling diverse functions. It is one and indivisible, yet it can be
looked at from different points of view, which, though often confused
and indistinguishable, are yet capable of being analysed in the
same manner in which we can analyse the physical, the intellectual,
and the spiritual aspects of man. In order to understand what
becomes of the obligations of an extinct State, it is necessary to dis-
tinguish between its various aspects.
A State can be regarded as:
(1) A sovereign of international law.
(2) The political sovereign within its territory.
(3) The jural sovereign within its jurisdiction.
(4) A private corporation within its own jurisdiction.
Latifi, pp. 59–63.
Effect of conquest on the State as a sovereign of international law.
In this capacity it has dealings with other independent States, ani
makes war and peace, and enters into treaties and alliances. This is
the purely personal aspect of the State and, as such, it disappears
with all its rights and obligations on conquest. Commercial treaties,
alliances, and agreements that have not become a part of the public
law of the community of nations are dissolved. There is, in short,
no succession to international sovereignty at all.
For example, under a treaty with the British Government, the
Amir of Afghanistan is paid an annual subsidy by the Indian treas-
ury. The claim to this subsidy is a right of property. If Russia
conquered Afghanistan, however, she would not become entitled
to it.
Latifi, p. 63.
1 Grot. L. II. c. ix., sec. 12.
2 Westlake in L. Q. R. (1901), XVII. p. 396, citing Hubet, Die Staatensuccessions.
sec. 23.
CONQUEST.
809
Effect of conquest on the State as political sovereign.
As such it holds the Eminent domain or the Imperium over its
territory and is entitled to the allegiance of its citizens. It controls
the public forces and administers the taxes, police, jails, and other
like institutions. It also owns the public lands.
It is possible for a State to have political sovereignty and yet not
be a sovereign of international law, and vice versa. Such, indeed, is
the case of the Austro-Hungarian Empire-a sovereign of interna-
tional law without political sovereignty, which is vested in its con-
stituent States of Austria and Hungary.
The conqueror succeeds to the political sovereignty of the con-
quered State in so far as he is substituted for the latter and continues
its personality. As distinguished, however, from the successor of
civil law, the new State steps into the rights and obligations of his
predecessor as if they were his own. “As a matter of course, all laws,
ordinances, and regulations in conflict with the political character,
institutions, and constitution of the new Government are at once dis-
placed. Thus upon a cession of political jurisdiction and legislative
power—and the latter is involved in the former-to the United
States, the laws of the country in support of an established religion,
or abridging the freedom of the Press, or authorizing cruel and un-
usual punishment, and the like, would at once cease to be of obligatory
force without any declaration to that effect; and the laws of the
country on other subjects would necessarily be superseded by existing
laws of the new Government upon the same matters.” 1
Thus fiefs, monopolies of sale, and rights of patronage, perish in
case the successor State does not possess corresponding institutions.
Acting on this principle, the Government of the United States re-
fused to entertain the claim of the Countess of Buena Vista for
damages, on her being deprived of the hereditary office of High
Sheriff of Habana on the occupation of Cuba-which was really a
conquest by the American forces—since hereditary public offices are
repugnant to the institutions of the United States.2
On the other hand, the conqueror will be liable for all pension
charges, both civil and military, except sums due to persons in pub-
lic employ who were actually in arms against him. Similarly, all
obligations for contracts made in the ordinary course of business
will pass to the successor.
to the successor. To take a concrete case: The tailor who
prepared uniforms for the police under the late Government will be
entitled to payment.
The Public Debt.-There is much controversy as to the fate of the
public debt of the annexed State. Despagnet, von Holtzendorff,
1 Chi. and Pacific Railway v. McGlinn, 114 U. S. 546.
2 Magoon, Civil Government in Territory under Military Ocoupation, p. 194 et seq.
110678–1952
810
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Bluntschli, and Calvo affirm unconditionally the conqueror's liability
for the debts of the extinct State. On the other hand, this doctrine
has often been denied. “We desire," say the judges in West Rand
Central Gold Mining Co. v. Rex,1 “to consider the proposition that
by international law the conquering country is bound to fulfill the
obligations of the conquered, upon principle; and upon principle
we think it cannot be sustained."
There can be little doubt, however, that, as a general rule, the
conquering State is liable for the public debt of its predecessor,
subject to certain exceptions.
(1) The annexing State cannot be held liable for the debts
incurred by the annexed State for the immediate purpose of war
against itself. We have seen that the conqueror succeeds to his
predecessor's obligations as if they were his own, but it would be
absurd to hold him liable for debts contracted for his own destruc-
tion, which, of course, he would himself never have incurred.
The question arises whether claims against a State for the exaction
of requisitions or the destruction of property without the owners'
consent, or on contracts in the way of business but connected with
the war, devolve on its successor.
Professor Westlake admits the liability, citing the authority of
the Italian cases that arose on the annexation of Lombardy and
Venetia by Italy in 1860.2
It is submitted that this view is not correct, since the question of
the validity of a debt incurred for carrying on the war ought to be
referred, not to the consent or otherwise of the lender, but to the
general principle whether the conqueror would himself have incurred
this debt. It is clear that he would never have done so.
As a matter of fact, the laws of many countries expressly make
their non-combatant population liable to requisitions without pay-
ment for the national armies.
There is no valid reason for distinguishing, from the point of
view of international law, between loans, taxes, contributions, and
requisitions for carrying on a national war. The citizens must be
held bound to help the State in its death-struggle with their all,
without acquiring a legal right to indemnity. It may, of course,
be politic for the conqueror to conciliate his new subjects, but this
is quite a different matter.
(2) “No State would acknowledge private rights the existence of
which caused or contributed to cause the war which resulted in
annexation." 3
(3) A solvent State is not bound to take over the whole of the
obligations of a bankrupt State on annexation. There is no reason
1 L. R. 2 K. B. 191 on p. 402.
2 Vol. I, p. 79.
3 Transvaal Concessions Commissioners' Report, p. 7.
CONQUEST.
811
why the mere fact of annexation should convert the latter's worth-
less securities into valuable ones. It is true that it is difficult to
calculate exactly a nation's assets, but there must be some limit to
the successor's liability.
Professor Westlake's 1 view, that if the annexed territory is in-
corporated in the annexing State its debt will be merged in that
of the latter, seems to be the correct one.
On the other hand, if the conquest is maintained as a separate
unit, i. e., “if there is a distinct and independent civilised Govern-
ment, potent and capable within its territorial limits, conducted by
a separate executive, not acting as the mere representative by appoint-
ment of the distant central administration, I perceive no reason to
doubt that such Government rather than the central authority should
respond out of its separate assets to any valid claims upon it, whether
accruing in the past, presently accruing, or to accrue in the future.
It does not matter what is the exact nature or extent of the connec-
tion between the principal State and the dependent possession, so
long as the latter possesses its own organised Government, and is not
a mere unorganised dependency. ... The crucial test is the sepa-
rated and autonomous Government and not the attribute of
sovereignty." 2
Thus when Texas, an independent republic, was absorbed in the
United States, it ceased to have a separate fiscal existence though it
remained an administrative unit, “potent and capable within its
territorial limits." Under the circumstances, the United States prop-
erly maintained that the debt of the extinct republic was a charge on
Texas alone. It is true that by the absorption Texas lost her separate
revenue from customs duties, but her customs were not as it were an
asset taken over by the United States cum onere. The fiscal system of
Texas was an institution of a political character repugnant to the
Constitution of the United States and, ipso facto, disappeared at the
annexation without leaving any obligation on the latter.
Similar principles apply when a part only of a State changes
masters. All local obligations must be taken over, together with a
proportionate part of the public debt.
On this point, the series of treaties made by the great Powers of
Europe concerning the Ottoman Empire-not unjustly said to form
together a sort of corpus juris publici orientalis—furnish important
precedents which deserve special notice. The Convention of 1881 pro-
vided that Greece should take over part of the Ottoman public debt
in proportion to the extent of Turkish territory that was to be ceded
to her. The debt was similarly apportioned when the kingdom of
1 Vol. I, p. 77.
2 Op. At. Gen. U. S. Vol. XXII, pp. 585-587.
812
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Bulgaria was set up and slices of territory given to Montenegro and
Servia.
Latifi, pp. 64–70.
Effect of conquest on the State as jural sovereign.
Law—and by this term is understood private law-is the conscience
of the community, the abstract conception of the relations of the
citizens between themselves. From the standpoint of the jurist the
State is the centre towards which gravitate the rights of individuals:
it is the State that directs the harmonious movement of each in his
appointed sphere of duty.
As distinguished from the first two cases, the conqueror takes over
the jural sovereignty of his victim in the same way as a civil heir
succeeds to the deceased. Rights and obligations are taken over by
the new State as if it were the old. “The King never dies” is a legal
maxim that applies to the sovereign's death in international as well
as in municipal law. It really means no more than that civilized
society never dissolves into anarchy, but that there is always a
fountain-head to which the laws can be referred. “ The laws of a
conquered country," therefore, "continue in force, until they are
altered by the conqueror."
This principle is not without importance in the law of property.
(1) All unexecuted decrees and judgments given by the displaced
sovereign will be valid and enforceable under the new régime even
if they are in conflict with the policy of the latter.
(2) In certain instances a State may be said to become indebted
in its jural aspect; e. g., when it serves as a conduit-pipe for conveying
property from a person not entitled to it to the person to whom it is
due.
Thus the Indian Penal Code authorises a magistrate to award a
portion or the whole of a fine in a criminal case to the complainant
by way of compensation. The sum so awarded must remain in de-
posit in the Government Treasury until the period of appeal expires.
These deposits are obligations which a successor of international law
would be bound to discharge.
Latifi ; pp. 70, 71 : Hall v. Campbell, 1 Cowp. 204, 209; Chi, and Pac. Ry.
Co. v. McGlinn, 114 U. S. 546.
Effect of conquest on the State as a private corporation.
Lastly, the State may also have the position of a private, though it
may be a privileged, corporation within its own jurisdiction. In
this capacity it administers the post and the telegraph, savings
banks, and State railways. It may carry on various industries;
e. g., grow fruit or manufacture quinine.
In this capacity a State is not extinguished at all by the conquest.
There is no death and no succession. The new State merely takes
the place of the old in the same manner as one set of directors take
CONQUEST.
813
the place of another set in a trading corporation. The position of
depositors in a State savings bank, for example, is no more affected
than if it were a private institution. Postal money-orders, claims
on insurance of registered articles, claims for damages for nonful-
filment of agreements in the State Industrial Department will enjoy
the same privilege.
Latifi; pp. 71, 72.
Effect of conquest on concessions.
Special mention must be made of concessions, which involve ques-
tions of great moment to industrial and financial circles.
A concession has been defined as “a grant made by a central or
local public authority to a private person or persons, for the utiliza-
tion or working of lands, an industry, railway, water-works, etc.”
Concessions may be of three kinds:
(1) Those involving the permanent alienation of the public do-
main, such as concessions to work mines.
(2) Those involving the use of the public domain, on payment or
otherwise, such as concessions to use a river for generating electric
power.
(3) Concessions for public works, whereby an individual under-
takes to execute works of public utility, recouping himself not
through payment by the public authority but by the collection of
fees from the persons benefiting by the works.
A conqueror may cancel concessions the grant of which was:
(1) Ultra vires.
(2) A breach of a treaty with the annexing State.
(3) Obtained unlawfully or through fraud.
(4) Conditional, the essential conditions remaining unfulfilled
without lawful excuse.
(5) Further, the concession may be cancelled if its continuance is
against the public interest. In this case, however, the persons inter-
ested will have to be paid such compensation as the conquering State
awards on expropriating its own concessionaries.
Whenever the conqueror recognizes a concession, he is entitled to
impose such conditions as his own public policy may suggest. Thus,
the Transvaal Concessions Commissioners recommended the con-
firmation of the Pretoria market concession, but suggested that spe-
cial arrangements should be made for its control, as, in their opinion,
that part of the agreement by which the management of the mar-
ket is entrusted, subject to no practical check or control, to a private
company, is contrary to the public interest."
Latifi, pp. 72–73; Encyl. of the Laws of England, Art. Concession;
Transvaal Concessions Commissioners' Report, p. 113.
1
814 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
Effect on prisoners of war.
If, however, the war ends through conquest and annexation of the
vanquished State, captivity comes to an end as soon as peace is
established. It ought to end with annexation, and it will in most
cases do so. But as guerrilla war may well go on after conquest and
annexation, and thus prevent a condition of peace from being estab-
lished, although real warfare is over, it is necessary not to confound
annexation with peace. The point is of interest regarding such pris-
oners only as are subjects of neutral States. For other prisoners be-
come through annexation subjects of the State that keeps them in
captivity, and such State is, therefore, as far as International Law
is concerned, unrestricted in taking any measure it likes with re-
gard to them. It can repatriate them, and it will in most cases do so.
But if it thinks that they might endanger its hold over the conquered
· territory, it might likewise prevent their repatriation for any definite
or indefinite period.
Oppenheim, vol. 2, pp. 172, 173.
Distinction between subjugation and conquest.
Subjugation must not be confounded with conguest, although
there can be no subjugation without conquest. Conquest is taking
possession of enemy territory by military force. Conquest is com-
pleted as soon as the territory concerned is effectively occupied. Now
it is obvious that conquest of a part of enemy territory has nothing
to do with subjugation, because the enemy may well reconquer it.
But even the conquest of the whole of the enemy territory need not
necessarily include subjugation. For, first, in a war between more
than two belligerents the troops of one of them may evacuate their
country and join the army of allies, so that the armed contention is
continued, although the territory of one of the allies is completely
conquered. Again, a belligerent, although he has annihilated the
forces, conquered the whole of the territory of his adversary, and
thereby actually brought the armed contention to an end, may never-
theless not choose to exterminate the enemy State by annexing the
conquered territory, but may conclude a treaty of peace with the
expelled or imprisoned head of the defeated State, reestablish the
latter's Government, and hand the whole or a part of the conquered
territory over to it. Subjugation takes place only when a belligerent,
after having annihilated the forces and conquered the territory of
his adversary, destroys his existence by annexing the conquered ter-
ritory. Subjugation may, therefore, correctly be defined, as extermi-
nation in war of one belligerent by another through annexation of
the former's territory after conquest, the enemy forces having been
annihilated.
1
CONQUEST.
815
Although complete conquest, together with the annihilation of the
enemy forces, brings the armed contention, and thereby the war,
actually to an end, the formal end of the war is thereby not yet
realized, as everything depends upon the resolution of the victor
regarding the fate of the vanquished State. If he be willing to re-
establish the captive or expelled head of the vanquished State, it is
a treaty of peace concluded with the latter which terminates the
war. But if he desires to acquire the whole of the conquered territory
for himself, he annexes it, and thereby formally ends the war
through subjugation. That the expelled head of the vanquished
State protests and keeps up his claims, matters as little eventually
as protests on the part of neutral States. These protests may be of
political importance for the future, legally they are of no importance
at all.
Oppenheim, vol. II, p. 325–327.
The next mode of acquisition involving transfer from one sov-
ereignty to another is
CONQUEST.
We will begin the consideration of it by distinguishing conquest in the
legal sense from conquest in the military sense. The latter takes place
when the agents of one belligerent state completely subdue the agents
of the other in a territory and hold it by military force. The former
is brought about when the victorious state exercises continuously all
the powers of sovereignty over a territory conquered in a military
sense, and signifies by some formal act, such as a diplomatic circular,
or a proclamation of annexation, or even by long and uninterrupted
performance of the functions of a ruler, its intention of adding that
territory to its dominions. The question of what constitutes a valid
conquest in the legal sense was fully discussed after the downfall of
Napoleon in connection with certain annexations of his in Germany
and Italy. The most famous of these cases was that of Hesse Cassel;
and it seems to be generally admitted in respect of it that the French
Emperor had acquired the Electorate by conquest so as to give inter-
national validity to acts done in the capacity of its sovereign. His
troops had overrun it in 1806, and he had acted as supreme ruler for
some time, and had then added the territory to the Kingdom of West-
phalia, which he created for his brother Jerome. This new state was
recognized by many powers and remained in existence till 1813.
When, therefore, the restored Elector treated Napoleon's confiscation
of his private property as null and void, he acted in a violent and
illegal manner since completed conquest had put the sovereign power
over the Electorate in the hands of the confiscating authority. Title
816
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
by conquest differs from title by cession in that the transfer of the ter-
ritory is not effected by treaty, and from title by prescription in that
there is a definite act or series of acts other than mere possession, out
of which the title arises. These acts are successful military opera-
tions; but if a province conquered in a war is afterwards made over
to the victorious power by treaty, it is acquired by cession. Title by
conquest arises only when no formal international document transfers
the territory to its new possessor. When the whole of a conquered
state is annexed by the victor there is no international person left with
whom he can make a treaty. But when a part only is taken, the van-
quished power instead of ceding it in so many words sometimes pre-
fers to omit from the treaty of peace any mention of the transfer, in
which case the principle of uti possidetis operates, and the territory
is made over, but by conquest, not by cession.
Lawrence, pp. 164–166..
Report of Transvaal Concessions Commission.
Despite its shortcomings, the Report of this Commission [the Report
of the Transvaal Concessions Commission, Parliamentary Papers,
1901, South Africa, Cd. 623], and the action taken by the British Gov-
ernment thereon, will probably constitụte an international precedent
of some importance on the question of the rights and liabilities inci-
dent to conquest and annexation. In the West Rand Central Gold
Mining Co. v. Rex (1905, 2 K. B. 391), it was held, as we have seen,
that the conquering State, in such cases, incurred no liability for the
obligations of its predecessor, the assumption of such obligations being
entirely a matter of discretion; that there was no distinction in this
regard between obligations contracted in the ordinary course of ad-
ministration and obligations incurred specially for the war; and that
in any case such obligations were not of a kind which a municipal
Court could give effect to.
The Report, whilst purporting to accept the judicial view, neverthe-
less qualifies this, in effect, by the admission that "the modern usage
of nations tends in the direction of the acknowledgement of such con-
tracts," and that “the best modern opinion favours the view that as a
general rule the obligations of the annexed State towards private indi-
viduals should be respected;" basing this, however, on political or
ethical rather than on legal grounds. On the whole this bears out the
view previously suggested, that there is a doctrine of succession which
is broadly accepted in practice, although the rules which govern its
more particular applications are still in course of growth. The Re-
port, it will be seen, also affirms the view that in the matter of succes-
sion there exists" no sound distinction between the cases where a State
acquires part of another State by cession and where it acquires the
CONQUEST.
817
whole by annexation;" a statement true at most points, although
needing some qualification. Equally important is the recognition-by
way of exception to the general rule—that a conquering State is not
liable for obligations contracted by its predecessor for the purposes
of the war; a distinction denied by the English Courts, but now gen-
erally accepted.
For the rest, the statement of the Commissioners is directed more
particularly to the question of " concessions." These are contractual
rights of a special kind, involving the grant by public authority to
individuals or corporations of some right or privilege not otherwise
exercisable; such as a right to construct works, railways or tramways,
or to establish undertakings for the supply of gas, water or electricity,
or to carry on some special industry under conditions not available to
the public. The principles laid down with respect to the treatment of
these rights in cases of conquest or cession will, from their reasonable
character, probably command a general assent.
The forfeiture of the concession of the Netherlands South African
Railway Co. in itself also constitutes a precedent of no little im-
portance. The use of the line and material of the company, on the
requirement of the territorial Power and in aid of its operations
during the war, would have rendered all property so employed liable
to seizure or destruction; but it would not, in itself, have constituted
a ground for the subsequent forfeiture of the concession. In the case
in question, however, the company, notwithstanding its neutral char-
acter, had pursued—through its local officials and with the assent of
the directors, by whose acts the company was bound-a policy of
active association with the cause of the enemy and active hostility
to the British, going far beyond the requirements incident to its
local subjection to the authority of the Transvaal Government. This
virtually constituted such an identification of the company with
the enemy cause for the purposes of the war as to justify, on the
analogy of unneutral service, the forfeiture of the undertaking,
although this was in fact only partially enforced.
Cobbett, pt. II, pp. 240-242.
Allegiance as affected by Conquest.
The opinion given in this case [the case of Count Platen-Halle-
mund, 1866; Forsyth, cases and opinions, 335] appears to embody a
correct statement of the existing law. The doctrine of an absolute
and unconditional transfer of allegiance by the mere fact of conquest
no longer obtains, and the express or implied consent of the subject
may now be regarded as essential to the creation of the new tie of
personal allegiance. In 1869 even the German Government appears
to have recognized this in the case of certain persons, formerly citi-
818
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
zens of Frankfort, who after the annexation of that city by Prussia
had withdrawn and become naturalized in Switzerland, but had sub-
sequently returned to Frankfort. In these circumstances, the Gov-
ernment–instead of holding them to the allegiance and obligation
of military service which, according to the preceding doctrine, would
have resulted from annexation, and from which naturalization else-
where without its consent would not have exempted them-contented
itself with merely expelling them from its territory. And the same
principle-despite soine opinion to the contrary—appears to be de-
ducible from the English and American decisions on this subject.
The principle is, moreover, equally applicable in the case where only
part of a State is conquered and annexed. But in such a case it is
usual, by the treaty of cession, to reserve to the nationals of the con-
quered territory either a right to elect for their former nationality,
subject to withdrawal, but with a right to retain or dispose of their
property; or, more often, a right to elect for their former nationality,
without withdrawal, on complying with certain conditions. With
respect to the classes of persons to whom this right, whatever its
scope, will be available, the practice appears to vary. Under some
treaties, the right of election is determined by nationality of origin;
under others, by residence or domicile; whilst under others, again, it
is extended both to nationals and domiciled inhabitants. The status
both of the territory annexed and of such of its inhabitants as do
not withdraw or otherwise elect for their former nationality, will
depend entirely on the municipal law of the conqueror, subject to the
considerations mentioned hereafter. But the status of the subjects
of neutral States who may be domiciled or resident in that territory
will not be affected, except, of course, in so far as the temporary and
local obedience which they owe to the territorial Power will not be
rendered to a new authority.
Cobbett, pt. II, pp. 243, 244.
+
66
GENERAL NOTES.—Title by Conquest (i).-In order that a State
may acquire a legal title to territory which it has conquered, it is
necessary that there should be either a cession,” express or implied,
on the part of the dispossessed State; or else a “completed conquest
in the sense described below. Where conquest affects only part
of the territory of the State, the title of the conqueror is almost
invariably confirmed by a treaty of peace. This may operate
either expressly and by way of cession; or impliedly and by virtue of
the principle of uti possidetis; the title resting in either case on treaty
rather than on conquest. But where the conquest affects the whole of
the territory of a State, and involves consequently an extinction of
the former Power, then for want of some ceding authority the title
CONQUEST.
819
will depend on conquest alone. For this it is necessary that there
should be “ firm possession" on the part of the conqueror, coupled
with "intention” and “ ability" to hold the territory so acquired.
In such a case “ firm possession ” will be shown by the effectiveness
of the conqueror's military occupation and control. An “intention
to retain ” will usually be manifested by some formal proclamation
or notice of annexation. But such a proclamation cannot rightly be
made unless and until the conquest has been completed. If made
prematurely it may indeed be validated by the ultimate issue of
the war; but, even so, it will not justify the conqueror in treating
authorized resistance as treason. The issue of such a proclamation,
moreover, may be important as marking the fact that the actual title
to the territory is now in dispute, and that any future grants or con-
cessions must be deemed to abide the issue of the war. "Ability to
retain” will be shown by the complete establishment of the authority
of the conqueror, as indicated either by some formal agreement of
surrender, or, at any rate, by the cessation of substantial resistance.
It needs to be noticed, however, that even though the resistance of
the local forces and inhabitants may have been quelled, the title of
the conqueror will not be regarded as complete, or the conquest as
definitive, if the war is continued by a third Power in alliance with
the subjugated State; or even, it would seem, if it is carried on by a
Power not in alliance with the latter, so long as the displacement of
the conqueror continues to be one of the objects of the war. The
recognition of the title of the conqueror by other States will depend
on much the same considerations: although in this case some interval
of time must necessarily be conceded in order to enable neutral Gov-
ernments to weigh the facts of the new situation and to judge of its
probable permanence.
实
​*
*
*
*
Succession in Cases of Conquest.-—The question of succession in
general has already been discussed. It remains only to consider it
with special reference to conquest. If, as has been suggested, a
doctrine of succession as between States is already broadly recog-
nized even though the rules governing its particular application are
still unsettled, it would seem that conquest affords one of its most
appropriate instances. The legal consequences of conquest, touching
as they do both on internal and external relations, must, if they are
to be orderly and intelligible, rest ultimately on some basis of prin-
ciple, and the choice here appears to lie between two alternatives.
One of these is to regard the rights of a conqueror as resting solely
on force, as in the ordinary conduct of war. This is the view which
is, no doubt, reflected in the English decisions. Nevertheless, it is at
bottom unsatisfactory, both as involving a complete dislocation of
820 SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
the ordered life of the community, and as failing to recognize the
necessary association of obligations with benefits as regards the posi-
tion assumed by the conqueror. Nor is it in harmony with modern
opinion or recent practice. The other is to regard the rights and
liabilities of a conqueror as governed broadly by the principle of
succession, although with some qualifications incident to the particu-
lar situation. This has the merit of securing, in legal theory, at any
rate, a continuation of the ordered life of the community, save in
matters essential to the security of the conqueror; of recognizing that
obligations pass with rights; and of requiring the conqueror to
assume them, at any rate to the extent of assets which he has received.
This view is also more in harmony with the trend of modern usage.
From the point of view, then, both of principle and practice, so far
as the latter extends, it would seem that the rights and liabilities of
a conqueror are referable broadly to the principle of succession. If
this be so, the conquest and annexation by one State of the whole
or part of the territory of another will carry generally those rights
and liabilities, whether as regards persons, property, or engage-
ments, which have been previously indicated as attending a “full”
or a “partial” succession, as the case may be. Nevertheless, in the
case of conquest, the application of this principle is, on its passive
side, at any rate, subject to certain qualifications, although these are
by no means well defined.
Qualifications. In the first place, it would seem that the con-
quering State is not bound to recognize or discharge obligations of
the preceding Government, which were incurred for the immediate
purposes of the war; for the reason that a State cannot, in the
circumstances, be expected to assume--and hence to facilitate the
making of-obligations entered into with a view to its own injury
or overthrow. But the precise scope of this qualification is far from
clear. It would clearly cover loans of money, and obligations for
war material, contracted after the outbreak of war. In strict
ness, it would also appear to extend to obligations or quasi obliga-
tions incurred by the displaced Government, during the war, in respect
of the levy of money or supplies, or other subjects of indemnity under
the domestic law; but, in cases of cession, obligations of this kind
are often expressly assumed by agreement, whilst, in the case where
the whole of a State is annexed, they are often assumed as a matter
of grace. In the second place, it is probable that a conquering State
would not now acknowledge private rights or obligations that had
caused or contributed to the war; for the reason that these must be
deemed to have been put in issue by the war and the issue to have
been decided against the party that failed. Nor, finally, is it likely
that a solvent State would now feel bound to assume to the full the
CONQUEST.
821
obligations of an insolvent State which it had annexed., In such a.
case it would seem that, both in equity and under the law of suc-
cession in its developed form, the liability of the conqueror is lim-
ited by the material assets actually received by him; these being
estimated, generally, by the net revenue-producing capacity of the
territory acquired, on a fair basis of taxation and expenditure.
Great Britain, however, in 1902, virtually took over the whole of the
debts of the conquered States, including a deficit of the South
African Republic amounting to some £1,500,000. Subject to these
qualifications, the annexing State will be bound by all the obliga-
tions of the preceding Government, whether incurred in the course
of administration or as incident to its business undertakings; but
it will not be bound by obligations arising out of tort, or by those
which were merely personal to the former Sovereign, or by treaties
or political obligations other than such as were locally connected
with the territory annexed. It will, on the other hand, be entitled
to all the public property of the conquered State, even though situ-
ated in foreign countries, such as monies lodged with foreign banks, or
ships lying in foreign ports; but not to property personal to the
former Sovereign, unless legally forfeited and duly converted to the
public use.
The Effect of Conquest on Private Rights and Laws.—With re-
spect to private rights, conquest and annexation are now generally
understood not to affect either private rights or private property,
to whomsoever belonging, in the conquered territory; although the
property of those who continue in active hostility may of course be
dealt with as the law may warrant. With respect to the effect of
conquest on the local laws and institutions, although the political
system, or such part of it as is inconsistent with the public interest
or policy of the annexing State, may be changed, yet laws regulating
private rights and relations are presumed to be unaffected by the
fact of conquest, except in so far as they will now depend on a new
authority, by which of course they may be changed in the ordinary
course of legislation. And even though a new judicial system may
be established, this will not in general be allowed to affect judge-
ments, decrees, or sentences previously given or passed. Over and
above these customary restrictions, moreover, there is also a moral
obligation incumbent on the conquering State to administer the con-
quered territory, in so far as this may consist with its own safety,
in such a manner as to mitigate the sufferings and restore the pros-
perity of its inhabitants, and to distribute so far as possible over
the population at large the burden of losses that have fallen on
individuals.
Cobbett, pt. II, pp. 244–248.
822
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
4
Effect of conquest or cession of territory.
The conquest or cession of territory effects a transfer of sover-
eignty to the conqueror; and also operates to vest in the conqueror
title to all the property, real? and personal,s of the conquered gov-
ernment within the district transferred.
The private rights of the inhabitants, however, such as rights of
property, are not affected by the conquest or cession, except to the
extent that they may be changed by express legislation of the
conqueror. 6
G. G. Wilson in 40 Cyc., p. 394.
When the Americans went there they found a government organ-
ized, and its officers performing the functions which pertained to the
execution of the local laws. If there was any other power in exis-
tence strong enough to dictate the law at Iquique, it was not exer-
cised, nor did the foreigners at Iquique receive even a notice that it
would ever be exercised in the future. Under these circumstances,
could the Peruvian government justly or lawfully treat the American
vessels as violators of their law?
When a portion of the territory of one nation is taken possession
of by the forces of another, with which it is at war, the conquering
party has an undoubted right to declare the law of the place as long
as his occupation of it continues; and all the rights of the previous
sovereign are suspended until his possession is renewed.
The island of Santa Cruz, then recently captured by the British
forces, was in their temporary occupation during our last war with
that country. We held it to be a colony of our enemy, and for that
reason our courts declared that a cargo of sugar shipped from there
was the lawful prize of an American privateer, who had captured it.
(9 Cranch, 191.) We conceded the same rule when it operated against
us. The port of Castine was taken by the British in 1814, and it was
decided that our revenue laws did not apply to it any more than
1 Magoon Law of Civil Government Under Military Occupation 51; American Ins. Co.
u. 356 Bales of Cotton, 1 Pet. (U. S.) 511, 7 L. ed. 242; Johnson v. McIntosh, 8 Wheat.
(U. S.) 543, 5 L, ed. 681 ; Sanches v. U. S., 42 Ct. CI. 458.
2 U. S. v. Tract of Land, 28 Fed. Cas. No. 16,535, 1 Woods 475.
3 U. S. v. Huckabee, 16 Wall. (U. S.) 114, 21 L. ed. 457.
Debts due the former government may be collected by the conqueror in an action of
assumpsit. U. S. v. Smith, 27 Fed. Cas. No. 16,335, 1 Hughes 347.
4 U. S. v. Prioleau, 2 Hem. & M, 559, 11 Jur. N. S. 792, 35 L. J. Ch. 7, 13 L. T. Rep.
N. S. 92, 13 Wkly. Rep. 1062, 71 Eng. Reprint 580 ; U. S. v. McRae, L. R. S. Eq. 69, 38
L. J. 406, 20 L. T. Rep. N. S. 476, 17 Wkly. Rep. 764.
No obligation is imposed on the conqueror to indemnify the inhabitants for loss caused
by the transfer. Sanches v. U. S., 42 Ct. Cl. 458.
5 Lietensdorfer 1. Webb, 1 N. M. 34; McMullen v. Hodge, 5 Tex. 34; U. S. v. Perche-
man, 7 Pet. (U. S.) 51, 8 L. ed. 604 ; Sanches v. U. S., 42 Ct. Cl. 458.
6 McMullen v. Hodge, 5 Tex. 34 ; Mitchel v. U. S., 9 Pet. (U. S.) 711, 9 L. ed. 283.
An office purchasable and held in perpetuity may have possessed a property right under
the laws of Spain ; but, when the office passed to and became an office of the United
States, the right of property therein ceased and disappeared and it might be abolished
without indemnity. Sanches v. U. S., 42 Ct. Cl. 158.
CONQUEST.
823
to a foreign country. (4 Wheat., 246; 1 Gallison's Reps., 501.) In-
deed, nothing can be clearer than that the conquest of a country, or
portion of a country, by a public enemy entitles such .enemy to the
sovereignty, and gives him civil dominion as long as he retains his
military possession. The inhabitants who remain and submit, and
strangers who go there during the occupation of the enemy, must
take the law from him as the ruler de facto, and not from the
government de jure, which has been expelled. It is equally well
settled that, when the former government resumes its possession of
the territory, whether by force or under a treaty, it can not call the
citizens or subjects of a third nation to account for obeying the au-
thority which was temporarily supreme during the enemy's occupa-
tion of the place. The just postlimini has no sort of application to
such a case.
Opinions of U. S. Attorneys General, vol. IX, p. 141.
The right of the President as Commander in Chief of the Army and
Navy of the United States under the Constitution to exercise govern-
ment and control over Porto Rico did not cease or become defunct in
consequence of the signature of the treaty of peace, nor from its rati-
fication. It was settled by the judgment of the Supreme Court of the
United States in a similar case arising out of the enforcement of local
tariff laws in California subsequently to the cession of that territory
and prior to any legislation with reference to it by Congress, that
the civil government organized from a right of conquest by the mili-
tary officers of the United States was continued over it as a ceded
conquest without any violation of the Constitution or laws of the
United States. (Cross v. Harrison, 16 Howard, 164.) According to
the well-settled principles of public law relating to territory held by
conquest, and according to the adjudication of the Supreme Court of
the United States in Cross v. Harrison, the military authorities in
possession, in the absence of legislation by Congress, may make such
rules or regulations and impose such duties upon merchandise im-
ported into the conquered territory as they may, in their judgment
and discretion, deem wise and prudent.
*
x
*
The point decided in Cross v. Harrison was that the formation of a
civil government in California was the lawful exercise of a belligerent
right over a conquered territory; that this government did not cease
as a consequence of the restoration of peace, and was rightfully con-
tinued until Congress legislated otherwise; and that the tonnage
duties and duties upon foreign goods imported into San Francisco
were legally demanded and lawfully collected by the civil government
whilst the war continued, and afterwards from the ratification of the
treaty of peace until the revenue system of the United States was put
824
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
into practical operation in California under the acts of Congress
passed for that purpose.
Opinions of U. S. Attorneys General, vol. XXII, pp. 561-565.
A victorious army, by the martial power inherent in the same, may
suspend, change, or abolish, as far as the martial power extends, the
relations which arise from the services due, according to the existing
laws of the invaded country, from one citizen, subject, or native of
the same to another.
The commander of the army must leave it to the ultimate treaty
of peace to settle the permanency of this change.
It is no longer considered lawful--on the contrary, it is held to be
a serious breach of the law of war-to force the subjects of the enemy
into the service of the victorious government, except the latter should
proclaim, after a fair and complete conquest of the hostile country
or district, that it is resolved to keep the country, district, or place
permanently as its own and make it a portion of its own country.
Lieber, Arts. 32, 33.
66
Conquest gives only an inchoate right, which does not become per-
fect till confirmed by the treaty of peace, and by a renunciation or
abandonment by the former proprietor."
Moore's Digest, vol. VII, p. 315; opinion of Mr. Jefferson, Sec. of State,
to the President, May 18, 1792, Am. State Papers, For, Rel. 1, 252; 7
Jefferson's Works, 572.
As to the question of conquest, see the case of the Georgiana and the
Lizzie Thompson, Moore, Int. Arbitrations, II. 1593 et seq.
The holding of a conquered territory is regarded as a mere mili-
tary occupation until its fate shall be determined at the treaty of
peace. If it be ceded by the treaty, the acquisition is confirmed, and
the ceded territory becomes a part of the nation to which it is annexed,
either on the terms stipulated in the treaty of cession, or on such as its
new master shall impose. On such a transfer of territory it has never
been held that the relations of the inhabitants with each other undergo
any change. Their relations with their former sovereign are dis-
solved, and new relations are created between them and the Govern-
ment which has acquired their territory. The same act which trans-
fers their country transfers the allegiance of those who remain in it,
and the law, which may be denominated political, is necessarily
changed, although that which regulates the intercourse and general
conduct of individuals remains in force until altered by the newly
created power of the state.
Moore's Digest, vol. I, p. 290, citing American Insurance Co. v. Canter;
1 Peters 511.
By the conquest and military occupation of Castine by the British
on September 1, 1814, that territory passed under the temporary
CONQUEST.
825
allegiance and sovereignty of the enemy. The sovereignty of the
United States over the territory was suspended during such occupa-
tion, so that the laws of the United States could not be rightfully
enforced there, or be obligatory upon the inhabitants who remained
and submitted to the conquerors. But, on the other hand, a territory
conquered by an enemy. is not to be considered as incorporated into
the dominions of that enemy, without a renunciation in a treaty of
peace, or a long and permanent possession. Until such incorporation,
it is still entitled to the full benefit of the law of postliminy.
Moore's Digest, vol. I, p. 291, citing U. S. v. Hayward, 2 Gall. 485.
The capture and occupation of Tampico, by the arms of the United
States, during the war with Mexico, though sufficient to cause it to be
regarded by other nations as part of our territory, did not make it
a part of the United States under our constitution and laws; it re-
mained a foreign country within the meaning of the revenue laws of
the United States.
Moore's Digest, vol. I, p. 291, citing Flening v. Page, 9 Howard, 603.
“ The authority and jurisdiction of Mexican officials [in Cali-
fornia) terminated on the 7th of July. 1846. On that day the forces
of the United States took possession of Monterey, the capital of
California, and soon afterwards occupied the principal portions of
the country, and the military occupation continued until after the
treaty of peace. The political department of the government desig-
nated that day as the period when the conquest of California was
complete and the authority of the officials of Mexico ceased."
Moore's Digest, vol. I, p. 291, quoting More v. Steinbach (1888), 127
U. S. 70, 80, citing Fremont v. United States, 17 How. 542, 563.
92
Down to the middle of the eighteenth century the practice of beI-
ligerent nations accorded with the theory that all kinds of property,
coming into the hands of one of the parties to the war, vested in him
as conqueror and were subject to his absolute disposal, so that he
might even alienate or cede the occupied territory while the issue of
hostilities remained undecided. But since that period this rule has
been either abandoned or subjected to very material limitations both
in theory and in practice. With reference to what is said in the fore-
going case, it is to be remembered that permanent title to California
passed to the United States under the treaty of Guadalupe Hidalgo.
Moore's Digest. Vol. I, p. 291; see the cases of the Georgiana and
Lizzie Thompson, Moore, Int. Arbitrations, II, 1606–1608; see, as to,
the validity of the payment to the temporary occupant of debts due:
to the titular sovereign, the case of the occupation of Naples by
Charles VIII, in 1495, Phillimore, Int. Law, III, 838; and, as to the
validity of the payment of such debts to the conqueror who gains:
and maintains a firm possession, the case of Hesse Cassel, id. 841.
110678.-19 53
826 ; SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
At the International American Conference, in Washington, the
delegates of the Argentine Republic and Brazil offered, January 15,
1890, a series of resolutions, the eighth article of which read as fol-
lows: “Acts of conquest, whether the object or the consequence of
the war, shall be considered to be in violation of the public law of
America.” (Minutes of the Internaticnal Anerican Conference, 107,
108.)
The resolutions were referred to the committee on general wel-
fare, which, April 18, 1890, recommended the adoption of the fol-
lowing declarations:
“1. That the principle of conquest shall never hereafter be
recognized as admissible under American public law.
562. That all cessions of territory made subsequent to the pres-
ent declarations shall be absolutely void if made under
threats of war or the presence of an armed force.
"3. Any nation from which such cessions shall have been ex
acted may always demand that the question of the
validity of the cessions so made shall be submitted to
arbitration.
* 4. Any renunciation of the right to have recourse to arbitra-
tion shall be null and void whatever the time, circum-
stances, and conditions under which such renunciation
shall have been made."
These declarations were subscribed by three members of the com-
mittee respectively representing the Argentine Republic, Bolivia,
and Venezuela. "Three other members representing Colombia, Brazil
and Guatemala stated that they adopted only the first of the decla-
rations.
Mr. Varas, a delegate from Chile, stated that the delegation from
that country would abstain from voting or taking part in the debate
on the resolutions.
Mr. Henderson, a delegate from the United States, offered, as ex-
pressing the views of the United States delegation the following
resolution:
“Whereas, in the opinion of this conference, wars waged in
the spirit of aggression or for the purpose of conquest should
receive the condemnation of the civilized world: Therefore
"Resolved, That if any one of the nations signing the treaty
of arbitration proposed by the conference, shall wrongfully
and in disregard of the provisions of said treaty, prosecute
war against another party thereto, such nations shall have
no right to seize or hold property by way of conquest from
its adversary."
After a long discussion, in which the delegate from Peru sup-
ported the recommendation of the committee as a whole, the report
CONQUEST.
827
was adopted by a majority of 15 to 1. The delegations voting affirma-
tively were Hayti, Nicaragua, Peru, Guatemala, Colombia, Argentine
Republic, Costa Rica, Paraguay, Brazil, Honduras, Mexico, Bolivia,
Venezuela, Salvador, and Ecuador. The United States voted in the
negative, while Chile abstained from voting.
Further discussion then took place, after which a recess was taken
in order that an agreement might be arrived at which would secure
the vote of the United States delegation. On the session being re-
sumed, Mr. Blaine presented the following plan:
“1. That the principle of conquest shall not, during the con-
tinuance of the treaty of arbitration, be recognized as
admissible under American public law.
“2. That all cessions of territory made during the continu-
ance of the treaty of arbitration shall be void if made
under threats of war or the presence of an armed force.
“3. Any nation from which such cessions shall be exacted may
demand that the validity of the cessions so made shall
be submitted to arbitration,
“ 4. Any renunciation of the right to arbitration made under
the conditions named in the second section shall be null
and void."
The conference unanimously agreed to accept this as a substitute
for the former report, Chile abstaining from voting. (Minutes of
the International American Conference (1889–90), 798–806. The
plan of a treaty of arbitration adopted by the conference never be-
came operative.)
Moore's Digest, vol. I, pp. 290–293.
:
United States v. Repentigny, 5 Wall. 211,260.–Mr. Justice Nelson
said: “Another rule of public law, kindred to this one is, that the
conqueror who has obtained permanent possession of the enemy's
country has the right to forbid the departure of his new subjects or
citizens from it, and, to exercise his sovereign authority over them.
Hence the stipulation in the capitulation and treaties of cession pro-
viding for the emigration of those inhabitants who desire to adhere
to their ancient allegiance, usually fixing a limited period within
which to leave the country, and frequently extending to them the
privilege, in the meantime, of selling their property, collecting their
debts, and carrying with them their effects.
Now, in view of these principles, it is apparent that Repentigny,
having refused to continue an inhabitant of Canada, and to become
a subject of Great Britain, but, on the contrary, elected to adhere in
his allegiance to his native sovereign, and to continue in his service,
.deprived himself of any protection or security of his property, except
so far as it was secured by the treaty. That protection, as we have
828
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
seen, was limited to the privilege of sale or sales to British subjects,
and to carry with him his effects, at any time within eighteen months
from its ratification. Whatever property was left unsold was aban-
doned to the conqueror.
West Rand Central Gold Mining Company v. Rex, 1905, 2 K. B.
391.-Lord Alverstone, C. J., said (pp. 403-408): “Turning now to
the text-writers, we may observe that the proposition we have put
forward that the conqueror may impose what terms he thinks fit in
respect of the obligations of the conquered territory, and that he
alone must be the judge in such a matter, is clearly recognized by
Grotius : see War and Peace,' book iii. chap. 8, s. 4, and the Notes to
Barbeyrac's edition of 1724, vol. ii, p. 632. For the assertion that
a line is to be drawn at the moment of annexation, and that the con-
quering Sovereign has no right at any later stage to say what obliga-
tions he will or will not assume, we venture to think that there is no
authority whatever. A doctrine was at one time urged by some of
the older writers that to the extent of the assets taken over by the
conqueror he ought to satisfy the debts of the conquered State. It is,
in our opinion, a mere expression of the ethical views of the writers;
but the proposition now contended for is a vast extension even of
that doctrine. It has been urged that in numerous cases, both of
peace and of cession of territories, special provision has been made
for the discharge of obligations by the country accepting the cession
or getting the upper hand in war; but, as we have already pointed
out, conditions the result of express inutual consent between two
nations afford no support to the argument that obligations not ex-
pressly provided for are to follow the course, by no means uniform,
taken by such treaties. See as to this, s. 27 of the 4th edition of
Hall's International Law, and the opinion of Lord Clarendon there
cited. Lord Robert Cecil cited a passage from Mr. Hall's book, 4th
ed. p. 105, in which he states that the annexing Power is liable for
the whole of the debts of the State annexed. It cannot, however,
be intended as an exhaustive or unqualified statement of the prac-
tice of nations, whatever may have been the opinion of the writer
as to what should be done in such cases. It is not, in our opinion,
directed to the particular subject now under discussion. The earlier
parts of the same chapter contain passages inconsistent with any
such view. We would call attention particularly to s. 27 on pp. 98
and 99 of the 4th edition, where the question as to the extent to which
obligations do not pass is discussed, and the passage on pp. 101 and
102, referring to the discussion between England and the United
States in 1854, in which Lord Clarendon's contention that Mexico
did not inherit the obligations or rights of Spain is approved of by
Mr. Hall. In the same way the passage from Halleck, s. 25 of chap.
34 (Sir Sherston Baker's edition of 1878), cited by Lord Robert
CONQUEST.
829
Cecil, cannot be construed as meaning to lay down any such general
proposition. It is cited from a chapter in which other sections con-
tain passages inconsistent with the view that the legal obligation to
fulfil all contracts passed to the conquering State. The particu.
lar section is in fact directed to the obligations of the conquering
or annexing State upon the rights of private property of the indi-
vidual—the point which formed the subject of discussion in the
American cases upon which the suppliants relied and with which we
shall deal later on. The passage from Wheaton (Atlay's ed. p. 46,
s.'30) shews that the writer was only expressing an opinion respect-
ing the duty of a succeeding State with regard to public debts, and,
as the note to the passage shews, it is really based upon the fact
that many treaties have dealt with such obligations in different ways.
We have already pointed out how little value particular stipula-
tions in treaties possess as evidence of that which may be called in.
ternational common law. We had not had the opportunity of re-
ferring to the edition of Calvo, cited by Lord Robert Cecil, but the
sections of the 8th book of the edition published in 1872 contain a
discussion as to the circumstances under which certain obligations
should be undertaken by the conquering State. The distinction be-
tween the obligations of the successor with regard to the private
property of individuals on the one hand, and the debts of the con-
quered State on the other, is clearly pointed out, and paragraphs
1005 and 1010 are quite inconsistent with any recognition by the au-
thor of the proposition contended for by the suppliants. The same
observations apply to Heffter, another work upon which reliance
was placed. As regards Max Huber's work on State Succession,
published in 1898, there is no doubt, as appears from Mr. West-
lake's recent book on international law, published last year, and
from other criticisms, that Huber does attempt to press the duty
of a succeeding or conquering State to recognise the obligations of
its predecessor to a greater extent than previous writers on inter-
national law, but the extracts cited by the Attorney-General in his
reply and other passages in Huber's book shew that even his opinion
falls far short of the proposition for which the suppliants contend.
But whatever may be the view taken of the opinions of these writers,
they are, in our judgment, inconsistent with the law as recognised
for many years in the English Courts; and it is sufficient for us to
cite the language of Lord Mansfield in Campbell v. Hall (1) in a
passage the authority of which has, so far as we know, never been
called in question: “It is left by the Constitution to the King's
authority to grant or refuse a capitulation. . . . If he receives
the inhabitants under his protection and grants them their property
he has a power to fix such terms and conditions as he thinks proper.
830
SELECTED TOPICS CONNECTED WITH LAWS OF WARFARE.
He is entrusted with making the treaty of peace; he may yield up
the conquest or retain it upon what terms he pleases. These powers
no man ever disputed, neither has it hitherto been controverted that
the King might change part or the whole of the law or political form
of government of a conquered dominion. And, so, much earlier,
in the year 1722 (2nd Peere Williams, p. 75), it is said by the
Master of the Rolls to have been determined by the Lords of the
Privy Council that where the King of England conquers a coun-
try it is a different consideration, for there the conqueror by saving
the lives of the people conquered gains a right and property in such
people, in consequence of which he may impose upon them what
laws he pleases. References were made to many cases of cession
of territory not produced by conquest, and the frequent assumption
in such cases of the liabilities of the territory ceded by the State
accepting the cession was referred to. They may be dismissed in
a sentence. The considerations which applied to peaceable ces-
sion raise such different questions from those which apply to con-
quest that it would answer no useful purpose to discuss them in
detail
*
:
“We pass now to consider the third proposition upon which
the success of the suppliants in this case must depend-namely,
that the claims of the suppliants based upon the alleged principle
that the conquering State is bound by the obligations of the con-
quered can be enforced by petition of right. It is the considera-
tion of this part of the case which brings out in the strongest
relief the difficulties which exist in the way of the suppliants. It
is not denied on the suppliant's behalf that the conquering State
can make whatever bargain it pleases with the vanquished; and a
further concession was made that there may be classes of obligations
that it could not be reasonably contended that the conquering State
would by annexation take upon itself, as, for instance, obligations
to repay money used for the purposes of the war. We asked more
than once during the course of the argument by what rule, either
of law or equity, which could be applied in municipal Courts could
those Courts decide as to the obligations which ought or ought not
to be discharged by the conquering State. To refer again to the
instance given in the commencement of this judgment—the obliga-
tion incurred by the conquered State by which their credit has been
ruined may have been contracted for insufficient consideration or
under circumstances which would have made it perfectly right from
every point of view for the conquering State to repudiate it in whole
or in part. No answer was, or could be, given."
:
APPENDIX.
NATIONALITY OF CORPORATIONS.
The national character of a corporation is primarily determined
by the country under the laws of which it has been incorporated,
and not by the nationality of its members (Janson v. Driefontein
Consolidated Mines, Limited, 1902, A. C. 484).
Thus in Amorduct Manufacturing Company, Limited, v. Defries
& Company, 1914, 31 T. L. R. 69, the Divisional Court held that a
limited company registered in this country according to English law
was entitled to sue during this war although alien enemies held almost
all the shares.
In Continental Tyre and Rubber Company (Great Britain), Lim-
ited v. Daimler Company, Limited, The Same v. Thomas Tilling,
Limited, 1915, W. N. 44, it was decided by the full Court of Appeal
(Buckley, L. J., dissenting) that a company incorporated under
English law and carrying on business in this country had a right to
sue during war, although all its shares except one were held by
alien enemies, the one share being registered in the name of the secre-
tary, a German, who had been naturalized here.
A supplementary incorporation in another country will not effect
a change in nationality. Thus in Nigel Gold Mining Company v.
Hoade, 1901, 2 K. B. 849, where a company registered in Natal, whose
only property was a gold mine in the Transvaal, obtained a supple-
mentary incorporation in the latter country in order to enable it to
sue and be sued there in its corporate name, it was held to be a British
company, and to be entitled to recover on a policy of insurance for a
loss occurring during the South African war.
In Orenstein & Koppel v. Egyptian Phosphate Company, Limited,
1914,2 S. L. T. 293, the pursuers were a company incorporated in Ger-
many, but were also registered under the Companies (Consolidation)
Act, 1908, as a foreign company trading in this country, and having a
registered London office; but all their work was done in Germany. The
First Division of the Scottish Court of Session held that the supple-
mentary registration here did not give the pursuers a title to sue
during the present war.
It would appear, however, that a corporation may have a com-
mercial domicile in the country where it carries on business, and thus
acquire an enemy character by continuing to conduct such business
831
832
APPENDIX.
therein after the outbreak of war between that country and Great
Britain (Nigel Gold Mining Company v. Hoade, 1901, 2 K. B. 849;
Lord Lindley's judgment in Janson v. Driefontein Consolidated
Mines, Limited, 1902, A. C. 505; Netherlands South African Railway
Company v. Fischer, 1901, 18 T. L. R. 116; see also De Beers Con-
solidated Mines, Limited v. Howe, 1906, A. C. 455, where it was held
that a foreign corporation could “reside" in this country within
the meaning of the Income Tax Act, 1853; but see the definition of
enemy in Article 3 of the Trading with the Enemy Proclamation,
No. 2, dated 9th September, 1914).
Trotter (Supplement, 1915), pp. 17, 18.
The Trading with the Enemy Amendment Act, 1914, 5 Geo. V. c.
12, contains provisions relating to an alien enemy's interests in com-
panies. It enables an official, called the Custodian, who is to be ap-
pointed by the Board of Trade (section 1 (1)), and who in England
and Wales is the Public Trustee section 1 (2)), and in Scotland
the Accountant of Court (London Gazette, 11th December, 1914) to
collect the payments of dividends, interest, or share of profits due
to an alien enemy by a person, firm, or company (section 2 (1)), and
to hold such until the termination of the war, to be thereafter dealt
with in such manner as the King may by Order in Council direct
(section 5 (1)). Payment is compulsory on the party liable within
fourteen days after 27th November, 1914, or within fourteen days
after it is due, as the case may be (section 2 (1)). For the purposes
of the Act the expression “dividends, interest, or share of profits
means any dividends, bonus, or interest in respect of any shares,
stock, debentures, debenture stock, or other obligations of any com-
pany, any interest in respect of any loan to a firm or person carry-
ing on business for the purposes of that business, and any profits or
share of profits of such a business, and, where a person is carrying
on any business on behalf of an enemy, any sum which, had a state
of war not existed, would have been transmissible by a person to the
enemy by way of profits from that business is to be deemed to be a
sum which would have been payable and paid to that enemy (section
2 (5)). Persons who have or control an enemy's property, real or
personal (including any rights, whether legal or equitable, in or aris-
ing out of property, real or personal), are bound to disclose it to the
Custodian under heavy penalties (section 3 (1)). Every company
incorporated in the United Kingdom and every company which,
though not incorporated in the United Kingdom, has a share transfer
or share registration office in the United Kingdom must, within one
month after the passing of the Act (27th November, 1914), by notice
in writing communicate to the Custodian full particulars of all
shares, stock, debentures, and debenture stock and other obligations
NATIONALITY OF CORPORATIONS.
833
of the company which are held by or for the benefit of an enemy;
and every partner of every firm, one or more partners of which on
the commencement of the war became enemies or to which money had
been lent for the purpose of the business of the firm by a person
who so became an enemy, must within the same period, by notice
in writing, communicate to the Custodian full particulars as to any
share of profits and interest due to sạch enemies or enemy. Heavy
penalties are imposed on the company or partner failing to comply
with this provision (section 3 (2)). No transfer made after 27th
November, 1914, by or on behalf of an enemy of any securities is
to confer on the transferee any rights or remedies in respect thereof;
and no company or municipal authority or other body by whom the
securities were issued or are managed must, except so far as provided
in the Act, take any cognisance or otherwise act upon any notice of
such a transfer (section 8 (1)). No entry must be made during the
continuance of the war in any register or branch register or other
book kept in the United Kingdom of any transfer of securities therein
registered, inscribed, or standing in the name of an enemy, except by
leave of a Court of competent jurisdiction or of the Board of Trade
(section 8 (2)). No share warrants payable to bearer are to be issued
during the continuance of the present war in respect of any shares or
stock registered in the name of an enemy (section 8 (3)). Heavy
penalties are imposed for contravention of these provisions upon the
company or body in default, and upon every director, manager, secre-
tary of the company or body who is knowingly a party to the default
(section 8 (4)). “Securities” here mean any annuities, stock, shares,
debentures, or debenture stock issued by or on behalf of the Govern-
ment or by any municipal or other authority, or by any company or
by any other body which are registered or inscribed in any register,
branch register, or other book kept in the United Kingdom (section
8 (5)). Where, during the continuance of the war, any coupon or
other security transferable by delivery is presented for payment to
any company, municipal authority, or other body or person, and
the company, body, or person has reason to suspect that it is so pre-
sented on behalf of or for the benefit of an enemy, the company, body,
or person may pay the sum due in respect thereof into the High
Court, and same is, subject to rules of Court, to be dealt with accord-
ing to the orders of the Court, and such a payment is for all pur-
poses to be a good discharge to the company, body, or person (sec-
tion 7). During the continuance of the present war a certificate of
incorporation of a company is not to be given by the Registrar of
Joint Stock Companies until there has been filed with him either
(a) a statutory declaration by a solicitor of the Supreme Court, or,
in Scotland, by an enrolled law agent engaged in the formation of
834
APPENDIX.
the company, that the company is not formed for the purpose or with
the intention of acquiring the whole or any part of the undertaking
of a person, firm, or company the books and documents of which are
liable to inspection under the Trading with the Enemy Act, 1914,
4 & 5 Geo. V. c. 87, section 2 (2), or (b) a license from the Board
of Trade authorising the acquisition by the company of such an
undertaking (section 9 (1)). Where such a statutory declaration
has been filed, it is not lawful for the company, during the continu-
ance of the present war, without the licence of the Board of Trade,
to acquire the whole or any part of such undertaking; and heavy
impenalties are imposed on doing so (section 9 (2)). The under-
takings here referred to are those (a) of a firm, one of whose part-
ners was immediately before or at any time since the commencement
of the present war a subject of, or resident or carrying on business
in, a State for the time being at war with Great Britain; or (b) of
a company of which one-third or more of the issued capital or of the
directorate immediately before or at any time since the commence-
ment of the present war was held by or on behalf of or consisted of
persons who were subjects of, or resident or carrying on business in,
a State for the time being at war with Great Britain; or (c) of a
person who was or is, or of a firm or company which were or are,
acting as agent for any person, firm, or company trading or carrying
on business in a State for the time being at war with Great Britain
(Trading with the Enemy Act, 1914, 4 & 5 Geo. V. c. 87, section 2
(2)). For the purposes of the Trading with the Enemy Amend-
ment Act, 1914, 5 Geo. V. c. 12,“enemy” has the same meaning as in
any Proclamation issued by the Crown dealing with trading with the
enemy for the time being in force; and “commencement of the
present war means as respect any enemy the date on which war
was declared by the Crown on the country in which that enemy re-
sides or carries on business section 14 (2)). In the application of
the Act to Scotland the necessary change of terminology is made
(section 14 (3)). The Act does not seem to apply outside the United
Kingdom. Its other relevant provisions will be found in their appro-
priate place in this book.
Trotter, p. 56–60. (Supplement, 1915.)
ور
Companies and Corporations.-We have seen that a political office
had no soul or energy, in the eyes of Coke. Can a fictitious (or, if
one prefers, ideal)-person have a national character? Can it be
said of a company whose shareholders and directors are all alien
enemies, that it is of British nationality?
An ambiguity lurks in the question. That the organisation is
“ British,” in the sense that is subject to the ordinary rules of British
company law, instead of to the peculiar rules which have quite re-
NATIONALITY OF CORPORATIONS.
835
cently been imposed upon the management of companies incorpor-
ated abroad, tells us nothing with regard to the propriety or other-
wise of assimilating it to ordinary British subjects. The mere fact
that those who carry it on must do certain things, and that their lia-
bilities will be measured in certain ways, does not give us any guide
as to its position in war. The fact that a motor-car is registered in
England, especially if that is its only place of registration, may
loosely be said to make it a “ British ” car. But, if it is the property
of a Frenchman, it would be much more truly stated to be a French
car. The fact is, the term “nationality” is in these cases used in a
loose and popular sense. It would be extremely dangerous to draw
legal conclusions from such ambiguous language. Suppose, again,
that the company is first incorporated in England, or the car built
there. Such an interesting event does not make the car or the com-
pany
“British” in any sense comparable to that in which a British
subject is British. We are told that an English incorporated com-
pany, being a pure creation of English law, must necessarily be
British by nationality. There is no abstract reason why it should.
English law may manufacture a conception. But it does not neces-
sarily mean to invest it with any national virtue.
Moreover, supposing for the sake of argument that we admit that
it does entertain that benevolent intention--what really happens
when a trading company is incorporated ? Is some ideal institution
launched upon an expectant world—some imaginary-real entity which
embodies the aspirations of thinkers, philanthropists, or else some
abstract conception independent of any particular person's interests?
We know it is not so. The interests of the company are simply
the interests of the shareholders. Incorporation is nothing more
than a device to enable them to avoid paying their debts in full.
In maintaining the necessity of inquiring into the actual compo-
sition of a company, one is of course faced by the case of Salomon v.
Saloman. That case if it may be said, was perfectly rightly de-
cided. The legislature having enacted that Frankensteins might cre-
ate monsters, we must put up with the consequences, and not com-
plain if these enable persons to do by this means what they could not
lawfully do otherwise. But the rule against contracting with an
alien enemy does not rest on any unlawfulness of dealings with
individual enemies, but on the hard fact that it is impossible to
have litigation with them. They have no persona standi in judicio.
Therefore it is that they cannot contract, or enforce or be held to
their contracts. Bynkershoek pointed this out centuries ago. It
is difficult, if not impossible, for them to appear among the enemy.
If, therefore, a company is managed by enemy directors, or if it is
composed of enemy shareholders, the rule eadem ratio, eadem lex
1 [1897] A. C 22.
Cf. Munkittrick v. Perryman, 74 L. T. 149.
836
APPENDIX.
applies. The persons who are really and substantially interested
in the .concern cannot practically control its management and
supervise the litigation by which alone it can enforce its rights.
It would appear that the right course in such a case is to treat
the company as an alien enemy; to sequestrate its assets, and to
refuse it a hearing in the courts. Any other course would expose
the enemy share holders to the dissipation of the assets by the
managers and agents. In proper cases, of course, a license could
be issued. And such a course appears to have the countenance
of Judge Story. In Society for the Propagation of the Gospel
v. Wheeler, His Honour says 1 " The corporation, as such, might per-
haps have no authority to maintain an action here. But in the
character of its members, as aliens, we have incontestable author-
ity to enforce the corporate rights. And it has been solemnly set-
tled by the Supreme Court, that for this purpose the Court will go
behind the corporate name and see who are the parties really inter-
ested. And if, for this purpose, the Court will ascertain who the
corporators are, it seems to follow, that the character cf the corpora-
tors may be averred, not only to sustain, but also to bar an action
brought in the name of the corporation. It might therefore have
been pleaded in this case, even if the corporation had been established
in a neutral country, that all its members were alien enemies; and
upon such a plea it would have deserved great consideration whether
it was not, pendente bello, an effectual bar.” Judge Story adds:
“Where the corporation is established in the enemy's country, the plea
would a fortiori apply." He does not in terms deal with the case
where the “establishment” is in the home country; but there is
no reason why it should not apply there also. It is a little difficult
to say what precisely he means by “establishment”_incorporation
or operation—but in all probability he never imagined the possibility
of a body of enemies continuing to operate under a New York
charter. In the particular case he held that a corporation created
and chartered for an ideal and special object by the British Govern-
ment must, if it is considered in America as a corporation at all,
be considered as a hostile British one. He found nothing on the
pleadings, however, to negative the existence of a license or safe-
conduct conferring a persona standi in judicio.
Enormous difficulty is created by the existence of companies whose
character is more ambiguous than in the extreme case just discussed.
So many elements enter into the affairs of a company—its share-
holders, its management, its operations may all be under such vary-
ing and complex national influences—that it is impossible to lay down
any fixed rule, and to say that in any particular case a company has
1 (1814) 8 Cranch. 133.
2 Not being incorporated in the U. S.
NATIONALITY OF CORPORATIONS.
837
a hostile character. What may with some confidence be affirmed is,
that the company which contains members of warring nationalities
ought to be wound up. A partnership between enemies cannot con-
tinue, because the communication which ought to be open between
partners is interrupted. It is certainly impossible for persons who
cannot communicate to carry on the affairs of a company, and it
would be equally improper to treat any of them as bound by what
the rest do in their absence. Presumably, therefore, the rough test
of the place of incorporation will here be held decisive. The enemy
owner or part owner of a car which happens to be in England must
leave it to the mercies of the British Crown; and the enemy share-
holder in companies incorporated in London, Edinburgh, or Dublin
must on principle retire from their membership. It would be unfair
to them to allow their capital to remain to be exploited by their
late co-shareholders: and probably the ideal course in such circum-
stances would be for the Crown to confiscate the shares and realise
their value. Lord Lindley thinks that Exp. Boussmaker, 13 Vesey
71, suggests that an alien enemy does not cease to be a member of a
company incorporated by the law of England. But that was a case
in which no continuing contractual relation was involved.
It was the case of hostile creditors in an English bankruptcy, and
it is difficult to see how it could have been decided otherwise than it
was. To have ignored the hostile creditors would have amounted to
confiscating their rights, not for the benefit of the Crown, but for
that of individuals, their fellow-creditors. To have paid them would
have involved impolitic, and indeed impossible, communication.
The proper course was taken, of setting aside their shares. It would
be entirely in acordance with Exp. Boussmaker, if the interest of
enemies in companies held to be impressed with a British national
character were treated similarily. Merely to intercept the divi-
dends is to leave the property at risk, and to put the hostile share-
holders in the position of having their capital played with by the
British ones. Ethically, that may or may not be defensible; but it is
quite inconsistent with the general principle of security for enemy
property within the realm.
The analogy of an insured person (who might conceivably be en-
titled to bonuses like a shareholder) in a life insurance company is
not inappropriate. The decision of the Supreme Court of the United
States in Stathem's Case shows what is the right course in such a
case, namely, to set aside the alien's interest, and treat him as dis-
charged from all future liabilities and entitled to no future benefits
under the policy.
The converse case arises of the position of companies incorporated
in Germany, Austria and Hungary. If such a company has any-
838
APPENDIX.
T
thing of a specifically governmental character, no doubt (in accord-
ance with the dictum of Story regarding the East India Company in
S. P. G. v. Wheeler, just cited) it would be regarded as hostile,
whatever the nationality of its shareholders. But should the mere
fact of incorporation in the enemy country have the same effect?
Should the fact that A, B, and C, British subjects, have taken steps
to be permitted to trade in the German Empire with limited liability
under a fancy name, be held sufficient to make it no longer possible
to deal with them on those terins in England, and to justify the
sequestration of their property here in England ? It would appear
somewhat pedantic to take such a view. A more complicated case
arises if there are enemy shareholders in such a company. There
might then be sufficient to justify a finding that the company bore a
hostile character. But upon the whole, we think that the existence
of a few hostile shareholders need not necessarily have this effect, and
that the true rule to be followed in su, h a case is to regard the com-
pany as incapable of carrying on business, and to administer its
assets on the principle of In re Boussmaker; and perhaps this might
be the proper course, however numerous and influential the hostile
shareholders are. Any other would be extremely unfair to neutral
members of the company.
Tax Cases. The cases which have been decided in this country on
the liability of a trading corporation to taxation-mainly income-
tax-do not afford much assistance. The term “domicile” is used in
the legislative enactments bearing on the subject, and is only appro-
priate to an individual. It was necessary for the courts to say what
it meant in the case of corporations. There is no such necessity, in
the present case, to interpret an inappropriate word.
The argument that there is some fundamental difference between
a partnership and a company derives most of its strength from the
fact that it is not the shareholders, but the directors who do in fact
meet and consult. But is the case altogether unknown of a block
of foreign shareholders combining to change the personnel of the
directorate?
Place of Business. So far we have refrained from introducing the
question of the place of the company's management and operations.
If it is right to say that the legal position of a trader does not depend
on what his allegiance or abode is, but on where he carries on his
business, that might often be decisive of the company's national
character. For a trading company is only created to carry on busi-
We shall recur to this suggestion later. It will be sufficient
1
ness.
1 It has been said in America that there is a presumption that the corporators are of
the nationality of the state where the company is (? first) incorporated. Unless this is
à presumption de jure it is of no value. See O. & M. Ry. Co. v. Wheeler, I Black 286 ;
Merrick v. Van Santrood (1866), 34 N. Y. 208, 8 Barbour 574; N. Y. v. Cent. Ry. of
N. J. (1876), 48 Barbour 478.
.
;
NATIONALITY OF CORPORATIONS.
839
1
to say here that there is no real ground for it. National character
as it affects trade is no such singular and artificial modification of
national character as it affects personal duty.
Non-trading Corporations.-Corporations established as a mere de-
vice for enabling persons to trade without paying their debts are
comparatively easy to discuss. The ideal corporations which stand
for the accomplishment of interests not exclusively private are in a
much more difficult position. If, as we have said, they subserve any
governmental aim, there is no doubt of their national character.
This covers municipalities, colonising companies, etc., etc. But the
mere fact of incorporation in the hostile country ought not to have
this effect. In fact, there is this dilemma before the advocates of such
a theory. Either the foreign corporation has no legal existence in the
United Kingdom 2-in which case, as Story remarks, the Court will
hare to consider who are the individual members of the corporation---
or else it exists in the eye of the law as a corporation, in which case
it is incorporated by British law, and is entitled to be considered a
British company. Owing its existence in England to a provision of
British law as much as any ordinary British company does, it is
immaterial whether the conditions of that existence are (as in the
ordinary case) the filing of a memorandum, or the grant of a charter,
or (as in this special case) the performance of certain acts abroad.
· We may dismiss, therefore, the suggestion that the mere fact of
incorporation in the hostile country is sufficient to brand a corpora-
tion with the character of an enemy. If the personnel, management,
and operations of the corporation are in the hostile territory, the
hostile character will attach. And in Story's opinion, it is the place
of management, rather than that of immediate activity, that seems
to be the decisive feature. The Society for the Propagation of the
Gospel v. Wheeler was the case of a body chartered for religious pur-
poses in England and composed solely of British subjects. Its
operations were at that date (1813) mainly limited to British terri-
tory-but it must have operated in American territory, or it would
not have required to occupy property in the state of New York.
The fact that its operations extended to the territory of that state
was not held to divest it in any degree of its British character:
and Story, J., declared it without hesitation to be an alien hostile
corporation.
In short, we believe the question to be one of fact. Are the foreign
elements, duly weighed—the act and place of incorporation, the place
of management, the nationality and civil domicile of the corporators,
and particularly of the directorate, the objects of the corporation, and
1 Per Story, J., in 8. P. G. V. Wheeler.
2 Cf. Stevens V. Phoenix Insce. Co. (1869), 41 N. Y. 150 per Mason, J.: “A corpora-
tion can have no existence out of the bounds of the sovereignty by which it was created."
840
APPENDIX.
the regions of its activity—such as to impress it with a distinctively
national character? It would be too much to say, “ such as to make
some one national character on the whole preponderate.” There
must be a distinct and overwhelming preponderance of the hostile
element—and such existed in the case before Story.
This is consistent with the case of the English Roman Catholic
colleges and the Irish Roman Catholic colleges in France. These
were voluntary associations incorporated, if at all, by the law of the
States of the Church. All their operations were carried on in
France, and their members were British subjects. They were held to
lie foreign corporations, and not entitled to the compensation pro-
vided by a treaty for “ British subjects.” Counsel for the respondent
commissioners in the English Colleges case lay stress on the actual or
presumed French charters. But in Lord Gifford's delivery of the
opinion 3 of the Privy Council no reference is made to this Stress
is solely laid on the fact of the establishments and their revenues
being under the control of the French government, although con-
tributed by and administered by British subjects. In the Irish
Colleges case, Leach, M. R., in a characteristically confused opinion,
substantially adopts Lord Gifford's view. Though he speaks of the
associations as being formed under the authority of the king, what
he means is (as he goes on to say) that the French government in
fact controlled these establishments.
Could a trust be said to have a nationality? or a fidei-commissium
jointly created by several persons of different nationalities and under-
taken jointly by several persons of the like description? To put the
question is to answer it. Ideal conceptions have no nationality
unless they are identified substantially with one particular state.
So far as the particular objects of the Proclamation of 9th Sep-
tember on Trading with the Enemy (whatever they may be) are con-
cerned, “enemy character” attaches only to companies incorporated
in an enemy country. Apparently a British company can obtain
money from England in Germany, even though its shareholders are
all Germans !
Under the Trading with the Enemy Act, 1914, the Court has power
to appoint a receiver of any firm or company to carry it on in the
public interest, in cases where its management is prejudicially af-
fected by the war, at the request of the Board of Trade. This power
has been exercised (Times, 21st October 1914). It was intimated
that such applications might be made summarily on motion. We
cannot think that such a receiver as was here appointed could bind
1 2'Knapp, 23, 51.
2 Except as to St. Omer, and the seminary at Paris, in which cases Louis XV seems
to have granted a charter.
3 Expressly stated to be concurred in by the Lord Chancellor and the Chief Justice of
the K. B. (Brougham and Denman).
NATIONALITY OF CORPORATIONS.
841
arose.
his absent enemy principals if they were a firm. As they were a com-
pany incorporated and operating in England, this difficulty scarcely
The Court can give him leave to borrow money, and to create
charges—even in priority to existing ones. But presumably prop-
erty abroad cannot be affected.
In Continental, etc., Ltd. v. T'illing, Ltd. (Times, 24th November
1914, affirmed, diss. Buckley, L. J., ib., 20th January 1914), Lush,
J., held that a corporation created here was in the position of a
British subject for purposes of suit. Subsequently (27th Novem-
ber), an Act was passed restricting the incorporation of new com-
panies, and requiring the immediate disclosure of hostile interests
in old ones.
Baty and Morgan, pp. 255, 266.
Robson 0. Premier Oil & Pipe Line Comy any. Ltd., 2 Ch. 124.--
The Court said: “ The case raises two questions, one of general
importance and one of a subsidiary nature-namely, have alien
enemy shareholders a right of voting in respect of shares in a British
company during the war and of exercising that right bý proxy; and
secondly, if there be not that general right, had these shareholders,
by reason of the circumstances of this case, that right.
“On the general question the argument of the appellant may, we
think, be summarized in two contentions—(1) that the prohibition
at common law of intercourse with an alien enemy is limited to com-
mercial intercourse or trading; and (2) that the transaction in this
case did not come within the definition of commercial intercourse.
In our opinion neither of these contentions is correct.
“ The prohibition of intercourse was stated as extending to much
wider limits by Lord Stowell in The Hoop and The Cosmopolite,
and reference was made in the judgment to writings of jurists on
the subject. The statement there contained has been followed in
several cases in the Courts of this country, and also in America by
such great authorities as Story and Kent. It is not necessary in our
opinion, to examine these cases in detail-as they were very care-
fully considered quite recently by the President of the Probate,
Divorce and Admiralty Division in a case of The Panariellos and
will be found collected in that judgment. We have not been referred
to and we do not know of any case in this country in which any
doubt has been thrown upon the statement of the law by Lord Stowell
which is adopted by the learned President in the case mentioned.
It was argued before us that these statements were all dicta not:
necessary for the decision of the cases in which they were made.
Assuming this to be the case, they are dicta of such high authority
that we should hesitate to differ from them, but in our opinion, so
far as they state that the prohibition extends beyond commercial
66
1106784-19
-54
842
APPENDIX.
intercourse, they are correct. We were, however, referred to a case
of Kershaw v. Kelsey, in which it was held, after a very careful ex-
amination of these cases and dicta, that they were not correct and that
no intercourse was prohibited except commercial intercourse or trad-
ing with the enemy. This case has been followed in other cases in
America. As we have already said, no such limitation is to be found
suggested in any English case, and we can not agree with it. The
prohibition of intercourse with alien enemies rests upon public policy,
and we can see no ground either on principle or authority for holding
that a transaction between an alien enemy and a British subject which
might result in detriment to this country or advantage to the enemy
is permissible because it can not be brought within the definition of
a commercial transaction.
“The learned judge, Gray J., in Kershaw v. Kelsey states the law
in our opinion correctly when he says the law of nations as judicially
declared prohibits all intercourse between citizens of two belligerents
which is inconsistent with the state of war between their countries,
but we respectfully disagree with him when he holds that nothing
comes within that principle except commercial intercourse.
We do not think it necessary to decide whether the principle
extends to intercourse, if such there be, which could not possibly tend
to detriment to this country or to advantage to the enemy; it is enough
to say that in our opinion all intercourse which could tend to such
detriment or advantage, whether commercial or not, is, to use the
language of the learned judge before mentioned, inconsistent with
the state of war between the two countries and therefore forbidden.
“That this transaction has such a tendency is clear. The proposed
exercise of the votes is for the purpose of obtaining the control and
management of a large voice in them of a British trading company
which owns amongst other things large property in the enemy's
country, and that this may be to the detriment of the interests of this
country and the advantage of the enemy can not be doubted.
We think also that the rejection of these votes may be justified on
the narrower ground that this was a commercial transaction. Com-
mercial intercourse is not confined to making contracts between an
alien enemy and a British subject, and such a transaction as this di-
rected to obtaining the control of a trading company is in our opinion
commercial.
“ It follows from what has been said that the employment of a
British subject as proxy to exercise the voting power is an inter-
course between him and the alien enemy which is prohibited.”
Daimler Co., Limited v. Continental Tyre & Rubber Co. (Great
Britain) Ltd., 1916, ? A. C. 307.-Lord Atkinson said: "I think this
appeal should be allowed. Having formed this opinion, I do not de-
66
NATIONALITY OF CORPORATIONS.
843
sire to express any opinion on the other and main point raised in the
case further than to say that, the question of residence of the com-
pany apart, I do not think that the legal entity, the company, can be
so completely identified with its shareholders, or the majority of
them, as to make their nationality its nationality or their status its
status, or it an alien enemy because they are alien enemies, or to give
it an enemy character because they have that character. I think the
judgment of Lord Macnaghten in Janson v. Driefontein Consoli-
dated Mines is inconsistent with any such view. Speaking of a
Transvaal company he said: “If all its members had been subjects of
the British Crown the corporation itself would have been none the
less a foreign corporation and none the less in regard to this country
an alien.” I think it is much to be regretted that the appellant com-
pany were not permitted to defend, as in my opinion they should
have been, so that all the facts might have been elicited, and it could
be determined whether the company resides and trades in Germany or
not.
I think the order suggested by my noble and learned friend Lord
Parker should be made."
Lord Shaw of Dunfermline said: “Once, however, it is clear that,
although this may be so under proposition 3, yet under proposition 2
every individual subject to the common law is inhibited and inter-
pelled from trading with the enemy, then trading with the enemy
on behalf of a company is just as much prohibited as personal trad-
ing. A limited company, incorporated in England and although
English as regards all the results which flow from such incorporation,
is thus completely barred by the Trading with the Enemy Acts--not
by reason of the company's allegiance or loyalty, but by reason of the
fact that there is no human agency possible within the realm through
which, and within the law, trading with the enemy could be accom-
plished. In obedience to that law all trading with the enemy, direct or
indirect, stops; no firm or company wheresoever or howsoever di-
rected can so trade, nor can anything be negotiated or transacted for
it through any person or agency in this country.
"As to shareholders or directors who are not alien enemies, they
stand pendente bello legally bereft of all their coadjutors who are.
And, if the company be a company registered in Great Britain, they
must face the situation thus created by adopting the courses suitable
either under the Companies Acts or the recent legislation. In this
way, while no payments of assets, dividends, or profits can be made
to alien enemy shareholders, yet the property and business of the
company may be conserved. There may be loss consequent on com-
mercial dislocation, but neither loss nor forfeiture is imposed by the
law. The law is completely satisfied if in the conduct and range of
844
APPENDIX.
the business trading with the enemy is avoided. To put in a word
one plain instance: All British trading by the company is still per-
mitted if there are British shareholders who can carry it on.
“With much respect I see no advantage to be gained, but much
confusion to result, from proceeding to a further stage and treating
or even characterizing British registered companies as either alien
enemies or companies with an alien enemy character. As stated, all
the enemy shareholders' rights being placed in suspense and all
trading with these shareholders or with any other enemy being inter-
pelled, there is no principle of law which would, in my humble
opinion, justify the incongruity of denominating or regarding the
company itself as enemy either in character or in fact."
Lord Parker of Waddington said: “My lords, having regard to
the foregoing considerations, I think the law on the subject may be
summarized in the following propositions:
“(1) A company incorporated in the United Kingdom is a legal
entity, a creation of law with the status and capacity which the law
confers. It is not a natural person with mind or conscience. To use
the language of Buckley, L. J., “it can be neither loyal nor disloyal.
It can be neither friend nor enemy.'
“(2) Such a company can only act through agents properly author-
ized, and so long as it is carrying on business in this country through
agents so authorized and residing in this or a friendly country is in
prima facie to be regarded as a friend, and all his Majesty's lieges
may deal with it as such.
“(3) Such a company may, however, assume an enemy charact??'.
This will be the case if its agents or the persons in defacto contrc1
of its affairs, whether authorized or not, are resident in an enem
country, or, wherever resident, are adhering to the enemy or taking
instructions from or acting under the control of enemies. A person
knowingly dealing with the company in such a case is trading with
the enemy.
“(4) The character of individual shareholders can not of itself
affect the character of the company. This is admittedly so in times
of peace, during which every shareholder is at liberty to exercise and
enjoy such rights as are by law incident to his status as shareholde".
It would be anomalous if it were not so also in a time of war, during
which all such rights and privileges are in abeyance. The enemy
character of individual shareholders and their conduct may, how-
ever, be very material on the question whether the company's agents,
or the persons in de facto control of its affairs, are in fact adhering to,
taking instructions from, or acting under the control of enemies.
This materiality will vary with the number of shareholders who are
enemies and the value of their holdings. The fact, if it be the fact,
that after eliminating the enemy shareholders the number of share-
NATIONALITY OF CORPORATIONS.
845
holders remaining is insufficient for the purpose of holding meeting
of the company or appointing directors or other officers may well
raise a presumption in this respect. For example, in the present case,
even if the secretary had been fully authorized to manage the affairs
of the company and to institute legal proceedings on its behalf, the
fact that he held one share only out of 25,000 shares, and was the
only shareholder who was not an enemy, might well throw on the
company the onus of proving that he was not acting under the control
of, taking his instructions from, or adhering to the King's enemies
in such manner as to impress an enemy character on the company
itself. It is an a fortiori case when the secretary is without authority
and necessarily depends for the validity of all he does on the subse-
quent ratification of enemy shareholders. The circumstances of the
present case were, therefore, such as to require close investigation and
preclude the propriety of giving leave to sign judgment under Order
xiv., r. l.
“(5) In a similar way a company registered in the United King-
dom, but carrying on business in a neutral country through agents
properly authorized and resident here or in the neutral country, is
prima facie to be regarded as a friend, but may, through its agents or
persons in de facto control of its affairs, assume an enemy character.
“(6) A company registered in the United Kingdom but carrying
on business in an enemy country is to be regarded as an enemy.
"My lords, the foregoing propositions are not only consistent with
the authorities cited in argument, and in particular with what was
said in this House in Janson v. Driefontein Consolidated Mines, but
they have, I think, the advantage of affording convenient and intelli-
gible guidance to the public on questions of trading with the enemy."
Lord Parmore said: “ The appellants do not deny that they ac-
cepted the three bills of exchange, but raise two points—that, having
regard to the enemy character of the shareholders and directors of
the respondent company, no payment can be enforced by the com-
pany during the war of debts owing to the company: and that there
was no authority in the solicitors for the company to issue the writ
in the action. Both matters are of importance, but the main argu-
ment both in this House and in the Court of Appeal has been di-
rected to the question how far the enemy nationality of the directors,
and of the shareholders of the company for the time being on the
register, affects the status of the company after the outbreak of war,
and its right to sue in the British Courts.
“A company incorporated under the Companies Acts has a con-
tinued existence, irrespective of the shareholders for the time being
on the register. It is a legal person or entity, which comprises not
only these shareholders, but their predecessors and successors. It
has a right to sue, and a liability to be sued, in the corporate name.
66
846
APPENDIX.
It possesses powers and is subject to obligations distinct from those
of the shareholders for the time being on the register, acting either
individually or in their collective capacity. I see no reason why the
word 'nationality' may not be properly applied to a corporate:
body. The nationality of such a body is wholly distinct from that
either of a majority or of the whole number of shareholders for
the time being on the register. The contention of the appellants is.
that when, at the outbreak of war, the shareholders on the register
of a British company, carrying on business within the United King-
dom, are wholly or largely alien enemies, the company loses the
right, which it would otherwise have, to sue in the British Courts.
"My Lords, I do not think that this contention is well founded,
and agree in this respect with the opinion expressed by Lord Shaw.
The company, after the outbreak of war, does not lose the status
of a company registered in this country. If there is an agent duly
appointed, who may or may not be a shareholder, the outbreak of
war does not per se terminate the agency, and the company is liable
to be sued in respect of obligations and is enabled to sue to enforce
its rights. In other words, the company still owes obedience to the
laws of this country and is entitled to their protection."
Respecting the management of a corporation, Lord Parmore said:
The effect of the outbreak of the war is to suspend, as from that
date and during the war, all rights of the enemy directors or cor-
porators to take any part in the management and direction or con-
trol of a British company carrying on business in this country.
This is in no sense a technical question, but one of substance and
reality. If any official of the company in this country entered into
any intercourse with the enemy directors or corporators, he would
be liable to a charge of misdemeanor and subject, if convicted, to a
heavy punishment. It is fair to say that the secretary of the com-
pany has denied that he has had any intercourse with the German
directors or corporation since the outbreak of the war, or that any
payment to the respondent company since that date has been remitted
to the enemy. Furthermore, the Board of Trade has taken control
of the books of the respondent company in accordance with the
powers conferred upon them by statute. Mr. Gore-Browne argued
for the appellants that the enemy corporators had disappeared dur-
ing the period of the war. It is more accurate to say that their
rights have been suspended by the outbreak of the war and will
remain in suspense during the period of the war."
The rights in the English courts of alien enemy firms did not pass
without attention in previous wars. The matter generally arose out
of the question whether a cargo of goods was seizable as prize or not.
NATIONALITY OF CORPORATIONS.
847
>
A mercantile house might have one branch in enemy territory and onė
in neutral or friendly territory; and the result would be that the
goods involved in the trade with the hostile branch would be confis-
cable, while those involved in that with the neutral or friendly branch
would not. This question is, of course, quite distinct from that which
is the subject of this article, namely, the capacity of alien enemy
persons, firms, and corporations for suing and being sued. It is
mentioned only to show that the problem of the commercial house
with wide ramifications is not new, and that principles were already
to hand which could be applied to the facts of the present war.
The result of the common-law authorities was expressed in the
Royal Proclamation of September 9th, 1914, which inter alia, drew
attention to the illegality of trading with enemy firms and went on
to provide that
6 where an enemy has a branch locally situated in British,
allied or neutral territory not being neutral territory in
Europe, transactions by or with such branch shall be trans-
actions by or with an enemy.
It is true that this provision and the authorities which will be cited
are in strictness relevant only to the question of trading with the
enemy, with which this article is not concerned. But they are of
value in so far as they yield by inference the proposition that branch
houses not domiciled in enemy territory or in neutral territory in
Europe can maintain an action in the English courts, even though
other branches of the same business possess an enemy domicile. This
principle was carried to some length in W.L. Ingle, Ltd. v. Mannheim
Insurance Co., in which it was held by Bailhache, H., that where an
insurance company had a head office in Germany and a branch office
in London, transactions with the branch in London would not be
transactions involving trading with the enemy. The significance of
this decision lies in the fact that the friendly domicile prevails, even
though the domicile of the head office is in enemy territory. But on
the other hand, the case of Leader v. Direction der Disconto Gesell-
schaft may be compared, for it was there held that where the London
branch of a bank of which the head office was in Berlin was permitted
to carry on business according to the terms of a license given by the
Treasury under an Order made under the Aliens Restriction Act
which prescribed the way in which the assets were to be applied, an
English firm which had obtained a judgment could not issue execu-
tion against the assets of the London branch. There is no conflict,
however, between this case and that previously referred to, for the
Leader case may be regarded as a decision on the circumstances, and
on the interpretation of the specific license under which the London
branch of the bank carried on business.
848
APPENDIX.
It can be said of these contemporary decisions on questions relating
to branch houses that they involve little or no departure from the
main principles enunciated by Stowell. It is a striking tribute to
the genius of that illustrious man that the foundations which he laid
were so firm and comprehensive that on them has easily been reared
the intricate superstructure of modern commercial relations. The
limited liability company, however, is a recent growth; the conditions
and circumstances under which it carries on business are new; and
when there is added to this the complexity of international opera-
tions, we are confronted with a legal problem of quite exceptional
difficulty which must be solved without any very great assistance
from the past.
Little more will be done in this article than to endeavor to sum-
marize the law as it has been left by the now famous decision of the
House of Lords in Daimler Co. Ltd. v. Continental Tyre & Rubber
Co. Ltd. The whole question has been discussed by Dr. Ernest
Schuster in a paper read by him before the Grotius Society of Eng-
land and printed in the second volume of Proceedings at page 57, a
paper to which the writer is deeply indebted, and which is rich in
learning, acute in reasoning, and profound in thought.
How is the commercial domicile of a corporation to be determined?
The question would become acute in : case where a limited liability
company was registered in Great Britain but was in point of control,
entirely an enemy concern. English law has always very strongly
insisted upon the complete distinction between the corporation and
the persons (e. g., shareholders) who compose it. But a point might
be reached when the directors and shareholders resident in enemy
territories might exercise such a real control over the activity of the
company that the courts might be driven to examine the whole basis
of the idea of incorporation and to declare that a body substantially
of enemy character should not defeat the legal incapacity of alien
enemies to sue by the technicality of English registration. I shall
endeavour to trace the stages by which the present doctrine was
reached.
The Proclamation of September 9th, 1914, expresses negatively the
doctrine that the place of incorporation is the test of a company's
domicile, for it provides that“ in case of incorporated bodies, enemy
character attaches only to those incorporated in an enemy coun-
At the end of 1914, the case of the Continental Tyre & Rubber Co.
Ltd. 1. Daimler Co. Ltd. was before the full Court of Appeal, the
same court which decided Porter v. Freudenberg. The Continental
Tyre Company was registered in England; out of 25,000 £1 shares
one was held by the secretary, a naturalized British subject, resident
try.”
NATIONALITY OF CORPORATIONS.
849
in Great Britain; the directors and all the other shareholders were
all German subjects resident in Germany. This company issued a
writ after the outbreak of war and obtained a judgment against the
Daimler Co. This was, therefore, an ideal test case. The Court of
Appeal (Buckley, L. J., dissenting) held that it could not look be-
hind the fact of the English incorporation in order to consider the
nationality of directors or shareholders. The company was, there-
fore, not an alien enemy, and was entitled to bring its action.
The next case to be noticed is Rex v. London County Council,
an authority not directly in point, but yet of some significance. The
council, as the statutory authority for the grant and renewal of
cinematograph licenses, refused to renew the license of a cinemato-
graph company registered in England on the ground that the large
majority of the shares were held by alien enemies. Lord Reading,
C. J., held that the council were entitled in the exercise of their
discretion to refuse the renewal. The court put its decision upon
the following rather special ground:
“If the Council are of opinion that the exhibition of cinemato-
graph films accompanied by music should not be entrusted to a com-
pany so largely composed of persons whose interest or whose desire
at the present time is or may be to inflict injury upon this country,
can it be held as a matter of law that the Council have travelled
beyond the limits allowed to them? I think not."
Before the House of Lords gave its famous decision when the
Daimler case came to them from the Court of Appeal, Bargrave
Deane, J., in the Admiralty Court, considered the point in the case
of The Polzeath. He held, in determining the question where a
company's principal place of business is situate within the meaning
of sec. I of the Merchant Shipping Act, 1894, that,
“ to decide the true character and entity of a business or company you
must ascertain where the motive or directing force of the business
or company comes from; in other words, where the real life is, and
not where the limbs move to give effect to that living power."
It will be noticed that in both the authorities just quoted there is
a current of opinion moving away from the strict doctrine of the
Court of Appeal in the Daimler case, that the determining factor in
deciding the domicile of a corporation is the place of its registration.
Attention is beginning to be paid to the quality of the persons who
compose the corporation in order to ascertain the real seat of its
activity.
Dr. Schuster's Grotius Society paper was read on May 30th, 1916,
nearly two months before the judgment of the House of Lords in the
Daimler case.
The learned writer, after a full consideration of the
850
APPENDIX.
treatment of corporations in foreign law, inclines to a view different
from that of the Court of Appeal, being of opinion that
"a corporate body should be deemed to be domiciled in the
place of its administrative centre, being the place at which the
persons directing the policy of the corporation habitually
meet."
This is, in effect, the doctrine of "control” which was adopted
and expounded in Lord Parker's judgment in the House of Lords.
When the Daimler case came before the Lords in July, 1916 they
reversed the Court of Appeal, holding that the mere fact of registra-
tion in Great Britain does not of itself determine the domicile of
à limited company as English. But the appeal was allowed by
some of the Lords on a different ground, namely that the secretary
had no authority to issue a writ in the action. As this was all that
was relevant for the decision of the appeal, any excursion into the
larger question of the status of the company became, strictly, un-
necessary. But fortunately, a matter of such gravity and importance
was not passed over without comment. Lord Parker, in a judgment
delivered on his own behalf, and on that of Lords Mersey, Sumner
and Kinnear, discussed the main questions, and laid down principles
for determining the domicile of corporations.
“It would seem, therefore, logically to follow," said Lord Parker,
“that, in transferring the application of the rule against trading
with the enemy from natural to artificial persons, something more
than the mere place or country of registration or incorporation must
be looked at. My Lords, I think that the analogy is to be found in
control, an idea which, if not very familiar in law, is of capital
importance and is very well understood in commerce and finance.
The acts of a company's organs, its directors, managers, secretary, and
so forth, functioning within the scope of their authority, are the com-
pany's acts and may invest it definitively with enemy character."
This judgment of the House of Lords may be taken to have estab-
lished that the status of corporations for purposes of suing is to be
tested by the notion of control and no longer by sole reference to the
place of incorporation. But the difficulties which arise when the
doctrine is applied in practice are considerable. At which point is
it to be said that the acts of a company are under enemy control?
The answer to this must vary with the particular circumstances
of each case. Again, is this a question of law for a judge or a ques-
tion of fact for a jury? The answer to neither of these questions is
entirely clear. It seems safest to say that an enemy status can be
pronounced for only after the most careful examination of the con-
stitution and composition of the company in every case, regard being
NATIONALITY OF CORPORATIONS.
851
had to all the circumstances before the court. Beyond this, it is
not wise to go.
It is hoped that the cases which have been discussed above will
illustrate the manner in which the English courts have applied them-
selves to some of the commercial problems created by the war. The
law in regard to the rights of action of alien enemy persons and
corporations may now be regarded as settled. The principles have
by now been fixed, and only their application remains. The indubi.
table community between the English and American systems of law
justifies the writer in hoping that this article may prove not with-
out interest to Americans.
Vol. 27, Yale Law Journal, December, 1917, article by Cyril M. Pic-
ciotto, Inner Temple, London, on Alien Enemy Persons, Firms and
Corporations in English Law.
O
MAY 31 1921
BOUND
1923} ANل
i
UNIVERSITY OF MICHIGAN
3 9015 03105 3997
1
)
1
北​中​北​:
MM ::
Me Mary :
高​,:
中国​人
​管理
​fata;
HAN
,等等
​博
​ARMAN
广
​w种​特点​,
MYMAN
本​:神​。
主教
​Airi,
AM:
HTM
老年人
​en winter ****
Member
#Searney Mission:
一代​的​At 、
本
​Ph律​性​;
*********
*
****
4MEEE*都​多​出
​34 参​M
if
4. 详
​我​的​世界​…
22
MASTEM
物业​中​js:
中学​时​的​这种​ys),
集​MY;移
​yity
事业​线 ​学​、
*
yer.net
Missy gate了​。
利益​;
建​,在
​平时​停​me.种​时​如
​Wiki
報名​表 ​P.4 443
信​的​作文
​时​指控​减量
​不多​的​MAMM,
***
??:法​六安​t.
Mini Manhofest
4-4-
AMAM
MMMM 然
​wins 或是​?
IN30年​:
Masterfet/343
<p always of
weiy小​强
​Mat讲
​--
博
​44
有​~
NEW
中学​x.
A.
存​.… 4%
Mittiin!
学​多​艺​y
r/Art,
$4,
***.**.*.4 A4
strue;
tw,
Airities
';
logo
4. Weate 1
Mattin
i……私​的
​事件​中​被​神​。
续​时​”(riaticfrantianother
神社​、讲​科学​、441
“对​,”冷​y;论​特
​WR型​,Nort 、 此​未予
​****
Hotel
*«****yif boots *** *** een korte mountain
Airition thron 《New CHAN
Two
11*2
Mity
nistr.等​。
4
公司​, App-
也​陆​“冰​次​,
钟​,
Nitr.g·
长寿​之
​ple
神​作​of Start的​冰砂​ret 这个
​Mist
titiz亮​非法
​Mish
钟​经​新​:wret。
WirAsy,
StarMX
Mis
A1%
MP4-V客​, feat
ist...; my of
4.*
將再​教程​:N
法​海
​***
17
:;其他
​MSN
***7A ,
tritt
修
​·
w; resear c管​,
“
开​售​中
​fer 求​神社 ​-
writh
杀​神​》: M
sta成​中学
​if see
eve; rw
本​特纳
​MT、EA
************
教主​Vers #CrMo
Missis”,
發表​者​名稱​: 市​中​区 ​-
国学
​*********** hint *
Merc="hi"
:
M”
有理
​NA,
Anth
trin
--shaftf<u>
.… - 38 物​:
分行
​MW
族​中学​:
: 一直​出
​《神曲​》中​有事​,
小​海参​(变种​)
1.1MM,多​了
​本行​41 是​的​“博
​* *
****
itty
wins:
7.
- Hic .
Weing the vit
原本​是​4. ^ :: * * 系​。 3.
Meghi
AM
想到​“中​中​”和​“法​,
· Me My MMMM
*** Ham!
****
我​院​研​rty 地产 ​44 PM
MATE;&;本​料​等​;
学科​。
中​和​地基​Are ress Horsen-Unive truct May
不到​;约​,
其中​M PHAT?
《财物​;
Panthum的​中​::::HEN
輸​yptoryHome Microsist..…我
​好多​,我​的​30%。
- 学​;。
1917:44
Ins
*****
地域 ​建
​*;
中学
​:
fort
至
​Writ体​#以​增​格
​| 小​客
​----
face
“时代
​南無​本​中之作​。
http:“就​来​,
exiss Ah
性​的
​济​和​手​都有​“纪律​riveria,
本​中等​,
systed instay 一​化​法​》、《中学
​wp-card) >> res B, Mary,
www.tw : : 本
​·www時​济​特
​1
*********
+ 4+ 5+ girl
roy
we Me 1
whers MEAME.ht:
» 中
​+++
獻給​出​较​utu.
Variti续​得
​教
​rAv.
Mi农​读
​体液​**其​语​学​基本​内科
​***** ::些​本​都 ​* * 收
​********
{ ip-
4
:
谢谢​你​的​各种​,各​>****434
wkit, KON : : MY 名称​:M
17 ...
*** 华为​、中​;ave+
然​率​,增
​中
​办事处​。
*****
“臨​MyMM;
“平安​;状​:
ME
事​时​,
“…
A:
1, Wine 4 ::
w),
ind4i
w,
44,www.you.
小学​部
​行业​: dyiu
体​May
此外​,
dy
2015 ..
AW, Hz,
-
FIM
Flash
whic 时
​***
ti
的​? :
56社团​“
华锋​,
44:44
博乐​车
​一样​,每​ok
Ass::,,
“东方​特钢​為​Hi.…”
ht,Mor: 多​對
​*. - rekao
you
·
6.14
****** **** Mob:**** W it.
**************** 8.4
::::
wim, Ories-inf
phote:
lefon
* r,毕
​wat
不会​走​,就有
​****
事情​进​x*
。
第​ws、如​本 ​-
* 本科-
​ten
**.*。
暫時
​>>
-
《我​的​事 ​1
*
4.等​。
*****精​、
***
V * ****
Arc sy-SMAX
非常​的​好​,我
​13: 小学​的​MaxM
p>4-*
* to vi
::
***
wi.
時​特
​事物​: Auty
..
其
​More
#1
**、
w科
​4. us
obim yok...****
*******
*****
“yyyyMM 九
​MAMA
秒​杀死​了​,空中​。
14:56:14.
yiyiyase
· 图​等​;