LECTURE III.

OF THE DECLARATION, AND OTHER ABLY MEASURES OF A STATE

OF WAR.

IN the last Lecture we considered the principal rights and duties of nations in a state of peace; and if those duties were generally and duly fulfilled, a new order of things would arise, and shed a brighter light over the history of human affairs. Peace is said to be the natural state of man, and war is undertaken for the sake of peace, which is its only lawful end and purpose. (a) War, to use the language of Lord Bacon, (b) is one of the highest trials of right; for, as princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms. The history of mankind is an almost uninterrupted narration of a state of war, and gives color to the extravagant theory of Hobbes, (c) who maintains that the natural state of man is a state of war of all against all; and it adds plausibility to the conclusions of those other writers, who, having known and studied the Indian character, insist that continual war is the natural instinct and appetite of man in a savage state. It is doubtless true that a sincere disposition for peace, and a just appreciation of its blessings, are the natural and

necessary result of science and civilization. {48} The right of self-defence is part of the law of our nature, and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights, both of person and property. This is the fundamental principle of the social compact. An injury, either done or threatened, to the perfect rights of the nation, or of any of its members, and susceptible of no other redress, is a just cause of war. The injury may consist,

(a) Cic. de Off. 1, 11 and 23; Grotius, b. 1, c. 1; Burlamaqui, pt. 4, c. 1, sec. 4; Vattel, b. 4, c. 1.

(b) Bacon's Works, iii. 40. (c) Leviathan, pt. 1, c. 13.

not only in the direct violation of personal or political rights, but in wrongfully withholding what is due, or in the refusal of a reasonable reparation for injuries committed, or of adequate explanation or security in respect to manifest and impending danger. (a) Grotius condemns the doctrine that war may be undertaken to weaken the power of a neighbor, under the apprehension that its further increase may render him dangerous. This would be contrary to justice, unless we were morally certain, not only of a capacity, but of an actual intention, to injure us. We ought rather to meet the anticipated danger by a diligent cultivation and prudent management of our own resources. We ought to conciliate the respect and good will of other nations, and secure their assistance, in case of need, by the benevolence and justice of our conduct. War is not to be resorted to without absolute necessity, nor unless peace would be more dangerous and more miserable than war itself. An injury to an individual member of a state is a just cause of war, if redress be refused; but a nation is not bound to go to war on so slight a foundation; for it may of itself grant indemnity to the injured party, and if this cannot be done, yet the good of the whole is to be preferred to the welfare of a part. (b) Every milder method of redress is to be tried, before the nation makes an appeal to arms; and this is the sage and moral precept of the writers on natural law.

{49} If the question of right between two powers be in any degree dubious, they ought to forbear proceeding to extremities; and a nation would be condemned by the impartial voice of mankind, if it voluntarily went to war upon a claim of which it doubted the legality. But on political subjects we cannot expect, and are not to look for, the same rigorous demonstration as in the physical sciences. Policy is a science of calculations and combinations, arising out of times, places, and circumstances, and it cannot be reduced to absolute simplicity and certainty. We must act according to the dictates of a well-informed judgment, resting upon a diligent and careful examination of facts; and every pacific mode of redress is to be tried faithfully and perseveringly, before the nation resorts to arms.

l. Assistance to Allies in War. — If one nation be bound by treaty to afford assistance, in case of war between its ally and a

(a) Grotius, b. 2, c. 1 and 22; Rutherforth, b. 2, c. 9; Vattel, b. 3, c. 3, sec. 26. (b) Grotius, b. 2, c. 22-25; Rutherforth, b. 2, c. 9.

third power, the assistance is to be given whenever the casus fœderis occurs; but a question will sometimes arise, whether the government which is to afford the aid is to judge for itself of the justice of the war on the part of the ally, and to make the right to assistance depend upon its own judgment. Grotius is of opinion (a) that treaties of that kind do not oblige us to participate in a war which appears to be manifestly unjust on the part of the ally; and it is said to be a tacit condition annexed to every treaty made in time of peace, and stipulating to afford succors in time of war, that the stipulation is only to apply to a just war. To give assistance in an unjust war on the ground of the treaty would be contracting an obligation to do injustice, and no such contract is valid. (b) But to set up a pretext of this kind to avoid a positive engagement is extremely hazardous, and it cannot be done, except in a very clear case, without exposing the nation to the imputation of a breach of public faith. In doubtful cases, the presumption ought rather to be in favor of our ally, and of the justice of the war.

{50} The doctrine that one nation is not bound to assist another, under any circumstances, in a war clearly unjust, is similar to the principle in the feudal law, to be met with in the Book of Feuds, compiled from the usages of the Lombards, and forming part of the common law of Europe during the prevalence of the feudal system. A vassal refusing to assist his liege lord in a just war, forfeited his feud. If the justice of the war was even doubtful, or not known affirmatively to be unjust, the vassal was bound to assist; but if the war appeared to him to be manifestly unjust, he was under no obligation to help his lord to carry it on offensively. (a)

A nation which has agreed to render assistance to another is not obliged to furnish it when the case is hopeless, or when giving the succors would expose the state itself to imminent danger. Such extreme cases are tacit exceptions to the obligation of the treaty; but the danger must not be slight, remote, nor contingent, for this would be to seek a frivolous case to violate a solemn engagement. (b) In the case of a defensive alliance, the condition

(a) B. 2, c. 25.

(b) Vattel, b. 2, c. 12, sec. 168; b. 3, c. 6, sec. 86, 87. (a) Feud. lib. 2, tit. 28, sec. 1. (i) Vattel, b. 3, c. 6, sec. 92.

of the contract does not call for the assistance, unless the ally be engaged in a defensive war; for in a defensive alliance the nation engages only to defend its ally, in case he be attacked, and even then we are to inquire whether he be not justly attacked. (c) The defensive alliance applies only to the case of a war first commenced, in point of fact, against the ally; and the power that first declares or actually begins the war makes what is deemed, in the conventional law of nations, an offensive war. (d) The treaty of alliance between France and the United States, in 1778, was declared, by the second article, {51} to be a defensive alliance, and that declaration gave a character to the whole instrument; and, consequently, the guaranty, on the part of the United States, of the French possession in America, could only apply to future defensive wars on the part of France. Upon that ground, the government of this country, in 1793, did not consider themselves bound to depart from their neutrality, and to take part with France in the war in which she was then engaged. (a) The war of 1793 was first actually declared and commenced by France, against all the allied powers of Europe, and the nature of the guaranty required us to look only to that fact. (b)

2. Declaration of War. — In the ancient republics of Greece and Italy, the right of declaring war resided with the people, who

(c) Vattel, b. 8, c. 6, sec. 79, 83, 90.

(d) A war may be defensive in its principles, though offensive in its operations; as where attack is the best mode to repel a menaced invasion, and the casus fœderis of a defensive alliance will apply. He who first renders the application of force necessary is the aggressor, though he may not be the one who first actually applies it. Vattel, b. 3, c. 6, sec. 91, 100; Edin. Review, No. 39, pp. 244, 245.

(a) See Pacificus, written in 1793, by Mr. Hamilton, then Secretary of the Treasury; and see the Instructions from the Secretary of State to the American ministers to France, July 15, 1797.

(b) Several instances are mentioned in Wheaton's Elements of International Law, 3d ed. 325-334, of the occurrence of the casus fœderis in the case of a defensive alliance. A distinction is made, in the later writers on public law, between the law of nations and international law, originating, it is said, with Jeremy Bentham. Thus Mr. Wheaton calls one of his works the History of the Law of Nations, and the other, Elements of International Law. Chancellor d'Aguesseau long ago noticed the distinction between Jus inter Gentes and Jus Gentium inter Civitates. International law seems to relate more particularly to rights and duties arising from social, commercial, and pacific intercourse between different nations, and may be subdivided into public and private international law.1

1Ante, 1, note 1.

retained, in their collective capacity, the exercise of a large portion of the sovereign power. Among the ancient Germans it belonged also to the popular assemblies, (c) and the power was afterwards continued in the same channel, and actually resided in the Saxon Wittenagemote. (d) But in the monarchies of Europe, which arose upon the ruins of the feudal system, this important prerogative was generally assumed by the king, as appertaining to the duties of the executive department of government. Many publicists (e) consider the power as a part of the sovereign authority of the state, of which the legislative department is an essential branch. There are, however, several exceptions to the generality of this position; for in the limited monarchies of England, France, and Holland, the king alone declares war, and yet the power, to apply an observation of Vattel to the case, is but a slender prerogative of the crown, if the parliaments or legislative bodies of those kingdoms will act independently, since the king cannot raise the money requisite to carry on {52} the war without their consent. The wild and destructive wars of Charles XII. led the states of Sweden to reserve to themselves the right of declaring war; and in the form of government adopted in Sweden, in 1772, (a) the right to make war was continued in the same legislative body. This was the provision in those ephemeral constitutions which appeared in Poland and France the latter part of the last century; and as evidence of the force of public opinion on this subject, it may be observed, that in the constitution proposed by Bonaparte, on his reascension of the throne of France, in 1815, the right to levy men and money for war was to rest entirely upon a law to be proposed to the House of Representatives of the people, and assented to by them. In this country, the power of declaring war, as well as of raising the supplies, is wisely confided to the

(c) Tacit de M. G. c. 11.

(d) Millar's View of the English Government, b. 1, c. 7. In the capitulation or great charter signed by Christopher II., King of Denmark, on his election to the throne in 1319, by the diet or assembly of the nobles, it was, among other things, declared that he should not make war without the advice and consent of the prelates and best men of the kingdom. Bishop Muller's Ancient History and Constitution of Denmark, reviewed in the Foreign Quarterly Review, No. 21.

(e) Puff. b. 8, c. 6, sec. 10; Vattel, b. 3, c. 1, sec. 4.

(a) Art 48. But this free constitution of Sweden was overturned before the end of the year 1772, and a simple despotism established in its stead.

legislature of the Union; and the presumption is, that nothing short of a strong case deeply affecting our essential rights, and which cannot receive a pacific adjustment, after all reasonable efforts shall have been exhausted, will ever prevail upon Congress to declare war.

It has been usual to precede hostilities by a public declaration communicated to the enemy. It was the custom of the ancient Greeks and Romans to publish a declaration of the injuries they had received, and to send a herald to the enemy's borders to demand satisfaction, before they actually engaged in war; and invasions without notice were not looked upon as lawful. (b) War was declared with religious preparation and solemnity. According to Ulpian, (c) they {53} alone were reputed enemies against whom the Roman people had publicly declared war. During the middle ages, a previous declaration of war was held to be requisite by the laws of honor, chivalry, and religion. Louis IX. refused to attack the Sultan of Egypt until he made a previous declaration to him by a herald at arms; and one of his successors sent a herald, with great formality, to the governor of the Low Countries, when he declared war against Spain, in 1635. (a) But, in modern times, the practice of a solemn declaration made to the enemy has fallen into disuse, and the nation contents itself with making a public declaration of war within its own territory, and to its own people. The jurists are, however, divided in opinion in respect to the necessity or justice of some previous declaration to the enemy in the case of offensive war. Grotius (b) considers a previous demand of satisfaction and a declaration as requisite to a solemn and lawful war; and Puffendorf (c) holds acts of hostility, which have not been preceded by a formal declaration of war, to be no better than acts of piracy and robbery. Emerigon (d) is of the same opinion; and he considered the hostilities exercised by England, in the year 1755, prior to any declaration of war, to have been in contempt of the law of nations, and condemned by

(b) Potter's Antiquities of Greece, b. 3, c. 7; Livy, b. 1, c. 32; Cic. de Off. b. 1, c. 11; De Repub. lib. 3.

(c) Dig. 49. 15. 24. Cicero says that under the Roman kings it was instituted law that the war was unjust and impious unless declared and proclaimed by the heralds under religious sanction. De Repub. lib 2, 17

(a) Emerigon, Traité des Ass. i. 561. (b) B. 1, c. 3, sec. 4.

(c) B. 8, c. 6, sec. 9. (d) Traité des Ass i. 563.

all Europe. Vattel strongly recommends (e) a previous declaration of war, as being required by justice and humanity; and he says that the fecial law of the Romans gave such moderation and religious solemnity to a preparation of war, and bore such marks of wisdom and justice, that it laid the solid foundation of their future greatness.

Bynkershoek has devoted an entire chapter to this question, (f) {54} and he maintains that a declaration of war is not requisite by the law of nations, and that though it may very properly be made, it cannot be required as a matter of right. The practice rests entirely on manners and magnanimity, and it was borrowed from the ancient Romans. All that he contends for is, that a demand of what we conceive to be due should be previously made. We are not bound to accompany that demand with threats of hostility, or to follow it with a public declaration of war: and he cites many instances to show that within the last two centuries wars have been frequently commenced without a previous declaration. Since the time of Bynkershoek, it has become settled by the practice of Europe that war may lawfully exist by a declaration which is unilateral only, or without a declaration on either side. It may begin with mutual hostilities. (a) 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 1T78, 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 published 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 imme-

(e) B. 3, c. 4, sec. 61. (f) Quæst. J. Pub. b. 1, c. 2. (a) Sir Wm. Scott, 1 Dodson, 247.

diately commenced on our part {55} as soon as the act of Congress was passed, without waiting to communicate to the English government any notice of our intentions. (x)

But though a solemn declaration, or previous notice to the enemy, be now laid aside, it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, (b) 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 cannot 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 equivalent to the most solemn declaration.l

(b) B. 3, c. 4, sec. 64.

1 But during the late rebellion it was laid down that when the regular course of justice had been interrupted, so that the courts of the United States could not be kept open, a civil war existed, without the necessity of a formal declaration or of legislative sanction. Nelson, J., in his dissenting opinion, cited the above passage. Prize Cases, 2 Black, 635; S. C. The Amy Warwick, 2 Sprague, 123, and

The Hiawatha, Blatchf. Pr. 1. See on the subject generally, Twiss, L. of N. War, § 35 et seq. As to the Crimean war, see Annual Register, 1854, 256 et seq., and State Papers, 531; Annual Register, 1859, 215 et seq. For the beginning of the war with Denmark, in 1864, see Ann. Reg. 1864, 218; for that of the war between Prussia and Austria, Ann. Reg. 1866, 219; between France and Prussia, Ann. Reg.

(x) The tendency is to regard a declaration of war as desirable and necessary. See 28 Am. L. Rev. 754. In The Teutonia, L. R. 3 Adm. & Ecc. 394, 409 (affirmed L. R. 4 P. C. 171), Sir Robert Phillimore said: "I think that there can be no doubt that war may exist de facto so as to affect at least the subjects of the belligerent state, either without a declaration on either side, or before a declaration, or with a unilateral declaration only." With respect to third parties, notice of the war should be given, or be apparent from notoriety, in order to throw upon them the duties of neutralitv; and until such notice

the conduct of neutrals is entitled to the most favorable construction. 1 Halleck's Int. Law (Baker's 3d ed., 1893), p. 542.

An Indian war depends simply upon the existence of hostilities, no formal declaration of war by Congress, or proclamation by the President, being necessary. Marks v. United States, 28 Ct. Cl. 147.

Belligerency may be recognized expressly, as by proclamation, or impliedly by acts of war, such as a blockade, or tacitly, by acquiescing in the exercise of belligerent rights. The Ambrose Light, 25 Fed. Rep. 408. War dates from action by Congress. Thayer's Const. Law Cases, 2352.

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 governments 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 subjects of the other. (c) Very important consequences concerning the obligations of subjects are deducible from this principle.

3. Protection to Enemy's Property. — {56} 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. (a) 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 convention 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, aris-

(c) Grotius, b. 3, c. 4, sec. 9; c. 4, sec. 8; Burlamaqui, pt. 4, c. 4, sec. 20; Vattel, b. 3, c. 5, sec. 70; [Small's Adm. v. Lumpkins's Exec., 28 Gratt. 832.] [See Hall, Int. Law. pt. 1, c. 3, § 18, where the opinions of continental jurists, holding that only the states as such, and not the individuals of each, become enemies, are reviewed. — B.]

(a) Grotius, b. 3, c. 9, sec. 4; c. 21, sec. 9; Bynk. Quæst. J. Pub. c. 2 and 7; Martens, b. 8, c. 2, sec. 5.

1870, 94. [The Rebellion did not suspend commercial intercourse, and hence did not dissolve a partnership. Such intercourse was not suspended until the proclamation of August 16, 1861. Matthews v. McStea, 91 U. S. 7. See, generally, Hall, Int. Law, pt. 3, c. 1, § 123; The

Teutonia, L. R. 4 P. C. 171, 178, 179. For the beginning of the war between Russia and Turkey, see Ann. Reg. 1877, 248. As to the time when the civil war ended, see Nelson v. Manning, 53 Ala. 549; Batesville Institute v. Kauffman, 18 Wall. 151. — B.]

ing 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 recover and dispose of their effects, or to withdraw them. Such stipulations have now become an established formula in commercial treaties. (b) Emerigon (c) considers such treaties as an affirmance of common right, or the public law of Europe, and the general rule laid down by some of the latter publicists is in conformity with that provision. (d) The sovereign who declares war, says Vattel, can neither detain 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 {57} 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 insurmountable 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, notwithstanding 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. (a)1 Sir Michael Foster (b) mentions several in-

(b) A liberal provision of this kind is inserted in the treaty of amity and commerce between the United States and the Republic of Colombia, which was ratified at Washington, May 27, 1825, and between the United States and the Republic of, Venezuela, by the treaty of friendship and commerce in May, 1836.

(c) [Traité des Ass. i. 566], 567.

(d) Vattel, b. 3, c. 4, sec. 63; Azuni, pt. 2, c. 4, art. 2, sec. 7; Le Droit Public de l'Europe, par Mably Œuvres, vi. 334; Burlamaqui, pt. 4, c. 7, sec. 6.

(a) Vattel, b. 3, c. 4, sec. 63. See the treaty of commerce between the United States and the Republic of Chili, May, 1832, art. 23, which affords that permanent protection.

(b) Discourse of High Treason, 185, 186.

1 See treaties of the United States with Guatemala, 10 U. S. St. at L. 873, art. 25; Costa Rica, ib. 916, art. 11; Peru, ib. 926, art. 32; Argentine Confederation, ib. 1005, art. 12.

By orders in council of the British

government, at the beginning of the war with Russia, Russian merchant vessels in British ports were allowed six weeks to load their cargoes and depart. March 29, 1854. It was further ordered that any Russian merchant vessel which, prior to

stances of such declarations 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 as full a manner as alien friends. (x)

Besides those stipulations in treaties, which have softened the rigors of war by the civilizing spirit of commerce, many governments have made special provision, in their own laws and ordinances, for the security of the persons and property of enemy's subjects, found in the country at the commencement of war. (c)

It was provided by Magna Charta (d) that, upon the breaking

(c) 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 purposes of commerce, and becoming alien enemies by means of the war, were to be allowed a proper time to withdraw, and their property was to be sacred from all sequestration or reprisal.

(d) Ch. 30.

certain dates, should have sailed from any foreign port for any port in her Majesty's dominions, might enter such port, discharge her cargo, and depart without molestation. March 29, 1854, April 15,

(x) War suspends the right to sue, but does not work a forfeiture of property or obligations. Lamar v. Micou, 112 U. S. 452, 464. In time of war, the President may submit to a court what amount of damages should be allowed for a capture, without the authority of an act of Congress. The Neustra Senora De Regla, 108 U. S. 92. Property taken and used by the government may, when equitable and just, be treated as taken under an implied contract of payment, but when the taking or use amounts to its seizure or destruction for the public good and safety, or as incident to the ravages of war, the owner bears the loss, but, on the other hand, he is not liable for any military works improving his property. United States v. Pacific R. Co., 120 U. S. 227; United States v. Atlantic & Pacific R Co., id. 241; Heflebower v. United States, 21 Ct. Cl. 228. Hence, as the government is not responsible for property destroyed by

1854. These and other orders are given in 1 Spinks, Ec. & Ad. R. app.; Cong. Doc. 33 Cong., 1 Sess. H. R. No. 103, p. 5. See Clemontson v. Blessig, 11 Exch. 135; [Hall, Int. Law, pt. 3, c. 1, § 126.]

its military operations in war, so private owners cannot be charged for works constructed on their property by the government to facilitate such operations. United States v. Pacific R. Co., 120 U. S. 227. In time of peace, army officers are liable, like private citizens, for the use of private lands of which they take possession. Stanley v. Schwalby, 85 Texas, 348.

Acts done in their own country by the civil or military agents of a foreign revolutionary government under its directions cannot be made the subject of a suit here, though such government is afterwards established and is recognized by the United States. Underhill v. Hernandez, 65 Fed. Rep. 577.

In this country it is the province of the President, by proclamation, and of Congress, but not of the judiciary, to declare what is hostile territory. Heflebower v. United States, 21 Ct. CL 228.

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 {58} merchants," said the charter, "be safe and well treated there, theirs shall be likewise with us." It has 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 (a) 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 commencement of the war, and it was understood to be confined to the case of merchants domiciled there. (b) 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 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. (c) 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 Frenchman came to England before the war, neither his person nor goods should be seized. (d) The statute of staples, of 27 Edw. III. c. 17, made a still more liberal and precise enactment 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 proclamation, 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 forty 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 {59} 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 resi-

(a) Esprit des Lois, 20, 14. (b) 1 Hale's P. C. 93.

(c) Henault's Abreg. Chron. i. 338.

(d) Bro. tit. Property, pl. 38; Jenk. Cent. 201, case 22.

dence 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." 1

4. Confiscation of Property. — 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. (a) The effect of war upon British property found in the United States, on land, at the commencement of the war, was learnedly discussed and thoroughly considered in the case of Brown; and the Circuit Court of the United States at Boston decided, (b) as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all the vessels and cargoes found afloat in our ports, at the commencement of hostilities, were liable to seizure and confiscation; and the exercise of the right rested in the discretion of the sovereign of the nation. When the case was brought up, on appeal, before the Supreme Court of the United States, the broad principle was assumed that war gave to the sovereign full right to take the persons and confiscate the property of the enemy wherever found; and that the mitigations of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself. Commercial nations have always considerable property in {60} 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

(a) Brown v. The United States, 8 Cranch, 110. See also ibid. 228, 229. (b) The Cargo of the Ship Emulous, 1 Gallison, 563.

1Ante, 57, n. 1.

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.1

Though this decision established the right, contrary to much of modern authority and practice, yet a great point was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right to depend upon a special act of Congress.

The practice, so common in modern Europe, of imposing embargoes at the breaking out of hostilities has, apparently, the effect of destroying that protection to property which the rule of faith and justice gives to it, when brought into the country in the course of trade and in the confidence of peace. Sir William Scott, in the case of the Boedes Lust, (a) explains this species of embargo to be an act of a hostile nature, and amounting to an implied declaration of war, though liable to be explained away and annulled by a subsequent accommodation between the nations. The seizure is an act at first equivocal, as to the effect, though hostile in the mere execution, and if the matter in dispute terminates in reconciliation, the seizure becomes a mere civil embargo; but if it terminates otherwise, the subsequent hostilities have a retroactive effect, and render the embargo a hostile measure, ab initio. The property detained is deemed enemy's property, and liable to condemnation. This {61} species of reprisal for some previous injury is laid down in the books as a lawful measure, according to the usage of nations; but it is often reprobated; and it cannot well be distinguished from the practice of seizing property found within the territory upon the declaration of war. It does not differ in substance from the conduct of the Syracusans, in the time of Dionysius the elder (and which Mitford considered to be a gross violation of the law of nations), for they voted a declaration of war against Carthage, and immediately seized the effects of Carthaginian traders in their warehouses, and Carthaginian richly laden vessels

(a) 5 C. Rob. 233.

1 The Juanita, Newberry, 352; United States v. 1756 Shares of Capital Stock, 5 Blatchf. 231, 237; post, 91, n. 1.

in their harbor, and sent a herald to Carthage to negotiate. (a) But this act of the Syracusans, near four hundred years before the Christian era, was no more than what is the ordinary practice in England, according to the observation of Lord Mansfield, in Lindo v. Rodney. (b) "Upon the declaration of war, or hostilities, all the ships of the enemy," he says, "are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made."

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 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. (a) These letters

(a) Mitf. Hist. of Greece, v. 402-404. (b) Doug. 613.

(c) Bynk. Q. J. Pub. c. 24; Vattel, b. 2, c. 18, see. 342, 344, 347, 353; Puff. Droit des Gens, par Barbeyrac, b. 8, c. 6, sec. 13, n. 1; Valin, Comm. ii. tit. des Lettres de Marque, 414, 416; Traité des Prises, 331; Emerigon, Traité des Ass. i.. 569; Message of the President of the United States to Congress, December 1, 1834. The right of government to enforce the just claims of its subjects against a foreign government, for debts duly contracted and unjustly withheld, is not to be questioned. It is admitted by statesmen and jurists, and was so stated by Lord Palmerston in the British Parliament, in July, 1847, that governments had a right to enforce by reprisals the claims of their subjects for debts against the subjects of other governments, if relief be denied by the non-execution or the improper administration of the laws in the foreign courts. Protection is due from government to its subjects in their persons and property; but the interference on the part of government to enforce that duty must always be a question of expediency. The government of the United States expressly acknowledged, and in one or more instances acted upon, that principle. President Jackson, in 1834, suggested such a measure against France; and in 1847, one ground of the war between the United States and Mexico was the non-payment by Mexico of debts due to American citizens.

of reprisal, as being applicable to a state of peace, have been frequently recognized and regulated by treaty. (d) The French ordinance of the marine of 1681 (e) regulates minutely 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. (f) 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, (g) 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 experiment 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. (h)

5. Confiscation of Debts. — {62} The claim of a right to confiscate debts, contracted by individuals in time of peace, and which remain due to subjects of the enemy at the declaration of war, rests very much upon the same principles as that concerning enemy's tangible property, found in the country at the open-

(d) See, for this purpose, the treaty of Munster, between Spain and Holland, in 1648; the treaties between England and Holland, in 1654 and 1667; the treaty of Ryswick, art. 9; the treaty of Utrecht, art. 16; treaty between the United States and the Republic of Colombia, in 1825.

(e) Liv. 3, tit. 10, des Réprisailles.

(f) In the time of Edward II., and for some succeeding reigns, the power of granting letters of marque and reprisals against the subjects of a foreign state that refused to render justice to the subjects of the crown of England was vested in the Court of Chancery. It was in the nature of a judicial process and of a privata remedy. The capture was in the nature of a security to obtain justice. Lord Campbell, Lives of the Lord Chancellors, i. 205.

(g) Art. 9.

(h) War does not exist merely on the suspension of the usual relations of peace. Commerce may be suspended or interdicted between the subjects of different states without producing a state of war. Reprisals and embargoes are forcible measures of redress, but do not per se constitute war, nor does the furnishing of specific assistance to one of the parties at war, according to a previous stipulation. Vide infra, 116. Mr. Manning, in his Commentaries on the Law of Nations, p. 98, after showing the imperfect definitions given by publicists, defines an open and solemn war to be "the state of nations among whom there is an interruption of all pacific relations, and a general contention by force, authorized by the sovereign."

ing of the war; though I think the objection to the right of confiscation, in this latter case, is much stronger. In former times, the right to confiscate debts was admitted as a doctrine of national law, and Grotius, Puffendorf, and Bynkershoek pronounced in favor of it. (a) It had the countenance of the civil law; (b) and even Cicero, in his Offices, (c) when stating the cases in which promises are not to be kept, mentions that of the creditor becoming the enemy of the country of the debtor. Down to the year 1737, the general opinion of jurists was in favor of the right; but Vattel says that a relaxation of the rigor of the rule has since taken place among the sovereigns of Europe, and that, as the custom has been generally received, he who should act contrary to it would injure the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. (d) There has frequently been a stipulation in modern treaties that debts or moneys in the public funds should not be confiscated in the event of war; and these conventional provisions are evidence of the sense of the governments which are parties to them, and that the right of confiscation of debts and things in action is against good policy, and ought {63} to be discontinued. The treaties between the United States and Colombia in 1825, and Chili in 1832, and Venezuela in 1836, and the Peru-Bolivian Confederation in 1838, and Ecuador in 1839, contain such a provision; but the treaty between the United States and Great Britain, in 1795, went further, and contained the explicit declaration, that it was "unjust and impolitic" that the debts of individuals should be impaired by national differences. A very able discussion of this assumed right to confiscate debts was made by Mr. Hamilton, in the numbers of Camillus, published in 1795. He examined the claim to confiscate private debts, or private property in banks or in public funds, on the ground of reason and principle, on those of policy and expediency, on the opinion of jurists, on usage, and on conventional law; and his argument against the justice and policy of the claim was exceedingly powerful. He contended it to be against good faith for a government to lay its hands on

(a) Grotius, b. 1, c. 1, sec. 6; b. 3, c. 8, sec. 4; Puff. lib. 8, c. 6, 19, 20; Bynk. lib. 1, c. 7. Lord Hale also laid it down to be the law of England. 1 Hale's P. C. 95.

(b) Dig. 41. 1 and 49. 15.

(c) Lib. 3, c. 26. (d) Vattel, b. 3, c. 5, sec. 77.

private property, acquired by the permission or upon the invitation of the government, and under a necessarily implied promise of protection and security. Vattel says, that everywhere, in case of a war, funds credited to the public are exempt from confiscation and seizure. Emerigon (a) and Martens (b) make the same declaration. The practice would have a very injurious influence upon the general sense of the inviolability and sanctity of private contracts; and with debtors who had a nice and accurate sense of justice and honor, the requisition of government would not be cheerfully or readily obeyed. Voltaire has given (c) a striking instance of the impracticability of confiscating property deposited in trust with a debtor, and of the firmness of Spanish faith. When war was declared between France and Spain, in 1684, the King of Spain endeavored to seize the property of the French in Spain, but {64} not a single Spanish factor would betray his French correspondent. (a)

Notwithstanding the weight of modern authority, and of argument, against this claim of right on the part of the sovereign, to confiscate the debts and funds of the subjects of his enemy during war, the judicial language in this country is decidedly in support of the right. In the case of Brown v. The United States, (b) already mentioned, Judge Story, in the Circuit Court in Massachusetts, laid down the right to confiscate debts and enemy's property found in the country, according to the rigorous doctrine of the elder jurists; and he said the opinion was fully confirmed by the judgment of the Supreme Court in Ware v. Hylton, (c) where the doctrine was explicitly asserted by some of the judges, reluctantly admitted by others, and denied by

(a) Des Ass. i. 567. (b) 8, c. 2, sec. 5.

(c) Essai sur les Mœurs et l'Esprit des Nations.

(a) The English Court of K. B. declared, in the case of Wolff v. Oxholm, 6 Maule & Selw. 92, that an ordinance of Denmark, in 1807, pending hostilities with England, which sequestered debts due from Danish to English subjects, and caused them to be paid over to the Danish government, was not a defence to a suit in England for the debt, and that the ordinance was not conformable to the usage of nations, and was void. It was observed by the court that the right of confiscating debts, contended for on the authority of Vattel, b. 2, c. 18, sec. 344; b. 3, c. 5, sec. 77, was not recognized by Grotius (see Grot. lib. 3, c. 7, sec. 4, and c. 8, sec. 4), and was impugned by Puffendorf (b. 8, c. 6, sec. 22) and others; and that no instance had occurred of the exercise of the right, except the ordinance in question, for upwards of a century.

(b) 8 Cranch, 110. (c) 3 Dallas, 199.

none. Chief Justice Marshall, in delivering the opinion of the Supreme Court, in the case of Brown, observed, that between debts contracted under the faith of laws, and property acquired in the course of trade on the faith of the same laws, reason drew no distinction, and the right of the sovereign to confiscate debts was precisely the same with the right to confiscate other property found in the country. This right, {65} therefore, was admitted to exist as a settled and decided right, stricto jure, though, at the same time, it was conceded to be the universal practice to forbear to seize and to confiscate debts and credits. 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 legislature 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 judgment of modern times.1 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 property 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 officers 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. (a) No such property

(a) The case of the 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 eminent 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 ease 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.

1Sed vide post, 91, n. 1. An inter esting old case is Hamilton v. Eaton, U.

S. C. C. 1792, Martin's B. (N. C.) pt. 2,

p. 1.

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, (b) 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. (x)

6. Interdiction of Commerce. — {66} One of the immediate and important consequences of the declaration of war is

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 sovereignty of the country, before its conquest, ceded the Duchies to the King of Prussia, upon con. dition 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 indemnity 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 debt, 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. (b) 1 C. Rob. 50.

(x) Cases construing the confiscation nets passed during the civil war, are Kirk v. Lynd, 106 U. S. 315; French v. Wade, 102 U. S. 132; Young v. United States, 97 U. S. 39; Conrad v. Waples, 96 U. S. 279; Risley v. Phenix Bank, 83 N. Y. 318. The Confiscation Act of Aug. 6, 1861 was directed at the confiscation of specific property used with the owner's consent to aid the insurrection; it had no reference to the owner's guilt and applied only to visible, tangible property which had been so used. Phoenix Bank v. Risley, 111 U. S. 125. Being a proceeding in rem, there was no necessity for a jury trial, or of personal service of notice of process upon a non-resident. Pasteur v. Lewis, 39 La. Ann. 5.

A decree confiscating real estate under the Confiscation Act of 1862 did not affect the interest of a mortgagee in the confis-

cated property. Avegno v. Schmidt, 113 U. S. 293. Under that act, upon the owner's death, his heirs, though not named in the statute, took the confiscated property by descent from him and not by gift or grant from the Government. Ibid.; Shields v. Schiff, 124 U. S. 351; Illinois Central R. Co. v. Bosworth, 133 U. S. 92. See further upon the Confiscation Acts, Jenkins v. Collard, 145 U. S. 546; Briggs v. United States, 143 U. S. 346; 25 Ct. Cl. 391. General language in the government's deed to a purchaser at a sale under that act did not operate as a warranty that the offender had any estate in the property at the time it was seized. Waples v. United States, 110 U. S. 630. The acts of 1861 and 1862 did not authorize the confiscation of corporate property. Ellis v. Phenix Bank, 12 Daly (N. Y.), 177.

the absolute interruption and interdiction of all commercial 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 government, and without a special license, is utterly inconsistent with the new class of duties growing out of a state of war. (a) The interdiction flows necessarily from the principle already stated, that a state of war puts all the members of the two nations respectively in hostility 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 existence of civil contracts and relations, and a reference to courts of justice; 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 principal object is to destroy the marine and commerce of the enemy, in order to force them to

(a) The doctrine goes to the extent of holding it unlawful, after the commencement of war, except under the special license of the government, to send a vessel to the enemy's country to bring home, with their permission, one's own property, which was there when the war broke out. It would be liable to seizure, in transitu, as enemy's property. The Rapid, 8 Cranch, 155; Potts v. Bell, 8 T. R. 548. In the case of The Juffrow Catharina, 5 C. Rob. 141, and of The Hoop, 1 C. Rob. 196, Sir William Scott inculcated very strictly the duty of applying in all cases for the protection of a license, where property is to be withdrawn from the country of the enemy, as being the only safe course. Mr. Duer, in his Treatise on Insurance, i. 561-566, ably and successfully contends that, when a subject finds himself in an enemy's country on the breaking out of war, he may return diligently to his country, with his property, without rendering it justly liable to confiscation by the prize courts of his own country; though the language of Mr. Justice Story, in the case of The Rapid in 1 Gallison, 309, and The Mary, [ib.] 621, goes to the extent of the severe denial of that right under any circumstances. If the adverse belligerent allow such a right, as see supra, 56, surely his own country ought to exercise the same lenity. Such was the decision of the Supreme Court of New York in Amory v. McGregor, 15 Johns. 24.

peace. (b) 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 {67} well as the governments themselves, in a state of hostility. (a) 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 immemorial usage of the whole community of the civilized world.

It follows as a necessary consequence of the doctrine of the illegality of all intercourse or traffic, without express permission, that all contracts with the enemy, made during war, are utterly void.1 The insurance of enemy's property is an illegal contract,

(b) 1 Chitty Comm. Law, 378.

(a) Potts v. Bell, 8 T. R. 548; Willison v. Patteson, 7 Taunt. 439; Story, J., in The Joseph, 1 Gall. 549, 550; in The Julia, ib. 601-603; Jonge Pieter, 4 C. Rob. 79; The Hoop, 1 C. Rob. 199, 217; The Rapid, 1 Gall. 305.

1 This language has been thought too broad in at least one important decision.

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 receiv-

ing his protection; as well as any act or contract 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

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, be-

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 Coppell v. Hall, 7 Wall. 542; United States v. Grossmayer, 9 Wall. 72 (appointment of an agent during the war); Hennen v. Oilman, 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 v. United States, 15 Wall. 395, which also holds that the line of division 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. United States, 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 wholly between parties domiciled and resident in one of the countries, 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. 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. Contracts having for their object to aid the enemy are of course void. Brickell v. Halifax County Commissioners, 81 N. C. 240. As to the dissolution of partnerships of which part of the partners were domiciled in enemy's country, see Matthews v. McStea, 91 U. S. 7; Taylor v. Hutchinson, 25 Gratt. 536. In general, as to the position held by the states in rebellion, see Horn v. Lockhart, 17 Wall. 570; Coleman v. Tennessee, 97 U. S. 509; Berry v. Bellows, 30 Ark. 198; Shattuck v. Daniel, 52 Miss. 834; Pennywit v. Foote, 27 Ohio St. 600. — B.]

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;

cause 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

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. See further, iii. 256, n. 1.

Other cases on the inability of an alien

enemy to sue (x) are Alcinous v. Nigreu, 4 El. & Bl. 217; Whelan v. Cook, 29 Md. 1; De Wahl v. Braune 1, H. & N. 178; United States v. 1756 Shares of Stock, 5 Blatchf. 231. The last case lays it down that he may appear as claimant in a prize case, and contest the allegations of the libel, a doctrine since sustained by the Supreme Court in a confiscation case. McVeigh v. United States, 11 Wall. 259. Contra, The Froija, Spinks, Pr. Ca. 37. It is clear that he may be sued. Dorsey v. Kyle, 30 Md. 512; ib. 522; Mixer v. Sibley, 53 Ill. 61; Ludlow v. Ramsey, 11 Wall. 581.

(x) Upon the commencement of a war, proceedings then pending in the courts should be continued, and not dismissed. Ex parte Boussmaker, 13 Ves. 71; Elgee v. Lovell, 1 Woolw. 102; Levine v. Taylor, 12 Mass. 8; Bishop v. Jones, 28 Texas, 294; contra, Howes v. Chester, 33 Ga. 89. An alien enemy may be sued, and is entitled to all the usual means of defence. Masterson v. Howard, 18 Wall. 99; McNair v. Toler, 21 Minn. 175. He may be bound, like other non-residents, by notice by publication. University v. Finch, 18 Wall. 106; Lee v. Rogers, 2 Sawyer, 549; Seymour v. Bailey, 66 Ill. 288; Selden v. Preston, 11 Bush, 191. He cannot defend, on the ground that he is an alien enemy. Dorsey v. Kyle, 39 Md. 512; see Herbert v. Rowles, id. 271. Where a person voluntarily left his home to engage in rebellion, it was held that neither he nor his heirs could complain that his absence deprived him of notice and power to defend judicial proceedings resulting in the sale of his land. Jenkins v. Hannan, 26 Fed. Rep. 657.

A merchant who at the commencement of the civil war departed from his residence in Georgia to loyal territory, where he remained until the close of the war, but who left an agent behind who collected money for him and therewith purchased cotton for him, afterwards captured and sold by the United States, was held entitled to recover therefor in the Court of Claims, as he did not trade with the enemy across the lines. United States v. Quigley, 103 U. S. 595. A mortgage made in Confederate territory to a loyal citizen is not ipso facto such unlawful intercourse as avoids it without further proof of violation of the non-intercourse act and the President's proclamation thereunder. Carson v. Dunham, 121 U. S. 421; see Hart's Case, 16 Ct. Cl. 459.

War does not terminate or suspend the obligation of a belligerent State to pay interest on its debts, even to alien enemies. See Cobbett's Int. Law Cases (2d ed.), 160. But war supersedes treaties and makes the subjects of the hostile States enemies in law. Valk's Case, 29 Ct. Cl. 62.

enemy is unlawful. The inhibition reaches to every communication, 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. (b) Every relaxation of the rule tends to corrupt the allegiance of the subject, and prevents {68} the war from fulfilling its end. The only exception to this strict and rigorous rule of international jurisprudence is the case of ransom bills, and they are contracts of necessity, founded on a state of war, and engendered by its violence. (a) 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 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, The whole of this doctrine, respecting the illegality of any commercial intercourse between the inhabitants of two nations at war was extensively reviewed, and the principal authorities, ancient and modern, foreign and domestic, were accurately examined, and the positions which have been laid down established, in the case of Griswold v. Waddington, (b) decided in the Supreme Court of New York, and afterwards affirmed on error.

This strict rule has been carried so far in the British admiralty as to prohibit a remittance of supplies even to a British colony during its temporary subjection to the enemy, and when the colony was under the necessity of supplies and was only very partially and imperfectly supplied by the enemy. (c) The same

(b) Willison v. Patteson, ubi supra; The Indian Chief, 3 C. Rob. 22; The Jonge Pieter, 4 C. Rob. 79; The Franklin, 6 C. Rob. 127.

(a) There is another exception to the general rule, in the ease 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 indorsed to an alien enemy, and which the latter, on the return of peace, was allowed to enforce. Antoine v. Morshead, 6 Taunt. 237.

(b) 15 Johns. 57; 16 Johns. 438, S. C.; Scholefleld v. Eichelberger, 7 Peters, 586, S. P.

(c) Case of The Bella Guidita, in 1785, cited in the case of The Hoop, 1 C. Rob. 207.

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 intercourse 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 intercourse {69} can be tolerated. All trade, therefore, by means of such vessels is unlawful, without the express consent of both the governments concerned. (a) 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 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 confederacy, that neither of the belligerents, without the other's consent, shall do anything to defeat the common object. (b)

In the investigation of the rules of the modern law of nations, particularly with regard to the extensive field of maritime capture, reference is generally and freely made to the decisions of the English courts. They are in the habit of taking accurate and comprehensive views of general jurisprudence, and they have been deservedly followed by the courts of the United States on all the leading points of national law. We have a series of judicial decisions in England and in this country, in which the usages and the duties of nations are explained and declared with that depth of research, and that liberal and enlarged inquiry, which strengthen and embellish the conclusions of reason. They contain more intrinsic argument, more full and precise details, {70} more accurate illustrations, and

(a) The Venus, 4 C. Rob. 355; The Carolina, 6 C. Rob. 336.

(b) The Nayade, 4 C. Rob. 251; The Neptunus, 6 C. Rob. 403.

are of more authority than the loose dicta of elementary writers. When those courts in this country which are charged with the administration of international law have differed from the English adjudications, we must take the law from domestic sources; but such an alternative is rarely to be met with; and there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of our national courts. We have attained the rank of a great commercial nation, and war, on our part, is carried on upon the same principles of maritime policy which have directed the forces and animated the councils of the naval powers of Europe. When the United States formed a component part of the British empire, our prize law and theirs was the same; and after the Revolution it continued to be the same, as far as it was adapted to our circumstances, and was not varied by the power which was capable of changing it. The great value of a series of judicial decisions, in prize cases, and on other questions depending on the law of nations, is, that they render certain and stable the loose general principles of that law, and show their application, and how they are understood in the country where the tribunals are sitting. They are, therefore, deservedly received with very great respect, and are presumptive, though not conclusive, evidence of the law in the given case. This was the language of the Supreme Court of the United States so late as 1815; (a) and the decisions of the English High Court of Admiralty, especially since the year 1798, have been consulted and uniformly respected by that court, as enlightened commentaries on the law of nations, and affording a vast variety of instructive precedents for the applications of the principles of that law. They have also this to recommend them, that they are pre-eminently distinguished for sagacity, wisdom, and learning, as {71} well as for the chaste and classical beauties of their composition.1 Many of the most important principles of public law have been brought into use, and received a practical application, and been reduced to legal precision, since the age of Grotius and Puffendorf; and we must resort to the judicial decisions of the prize

(a) 9 Cranch, 198. 1 Historicus, Int. Law, 53, 84 (on M. Hautefeuille's work).

tribunals in Europe and in this country for information and authority on a great many points on which all the leading text-books have preserved a total silence. (x) The complexity of modern commerce has swelled beyond all bounds the number and intricacy of questions upon national law, and particularly upon the very comprehensive head of maritime capture. The illegality and penal consequences of trade with the enemy; the illegality of carrying enemy's despatches, or of engaging in the coasting, fishing, or other privileged trade of the enemy; the illegality of transfer of property in transitu between the neutral and belligerent; the rules which impress upon neutral property a hostile character, arising either from the domicile of the neutral owner, or his territorial possessions, or his connection with a house in trade in the enemy's country, — are all of them doctrines in the modern international law, which are either not to be found at all, or certainly not with any fulness of discussion and power of argument, anywhere, but in the judicial investigations to which I have referred, and which have given the highest authority and splendor to this branch of learning.

(x) The Monroe doctrine, recently much discussed, although not yet recognized and defined in the Law of Nations, appears, apart from alliance with other American republics, to rest upon the right of self-defence and self-protection, illustrated in the case of the three-mile zone and arms of the sea as enclosed waters, which the author suggests, supra, p. 30,

in the case of the United States should be liberally extended by lines drawn from one distant headland to another. See 29 Am. L. Rev. 419, 839, 887; 1 Wharton's Digest, § 57; Tucker's Monroe Doctrine; the recent debates in Congress, and Pres. Diaz's recent message and Mr. Phelps' address noticed in 62 Nation, 264, 280, &c.