By the statute of 27 Edward III., c. 17, foreigners were to have convenient warning of forty days, by proclamation, to depart the realm with their goods. The act of congress of July 6, 1798, authorised 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 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 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.' 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 favour of the milder principle, nevertheless, 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 travelling in France. The pretext for this exercise of the extreme right of war was the capture of French vessels in the bay of Audière 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.1 § 15. What we have said of the detention of the enemy's person, also holds good with respect to the right to seize and 1 Massé, Droit Comm., liv. ii. tit. i. ch. ii. §§ 1, 2; Thiers, Hist. du Cons. et de l'Empire, liv. xvii.; Las Cases, Memoires de Napoléon, vol. vii. pp. 32, 33; U. S. Statutes at Large, vol. i. p. 577; Bello, Derecho Internacional, pt. ii. cap. ii. § 2; Heffter, Droit International, § 126. 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 partially and imperfectly supplied by the enemy. The same interdiction of trade applies to ships of truce, or cartel ships, which are a species of neutral 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 can be tolerated. All trade, therefore, by means of such vessels, is unlawful, without the express consent of both the governments concerned.' A case occurred during the war of 1812, between the United States and Great Britain, and was decided by the American courts, showing the rigour of this rule of non-intercourse. A citizen of the United States had purchased a quantity of goods within British territory, a long time previous to the declaration of hostilities, and had deposited them on an island near the frontier; upon the declaration of war, his agents hired a vessel to proceed to the place of deposit and bring away the goods; but, on her return, she was captured and, with her cargo, condemned as a prize of war.1 § II. The only exceptions to this strict and rigorous rule of international jurisprudence, are 'contracts 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 1 Kent, Com. on Am. Law, vol. i. p. 66; the 'Rapid,' 8 Cranch. R., 155; Potts v. Bell, 8 Term R., 548; the ‘Venus,' 4 Rob., 355; the 'Carolina,' 6 Rob., 336; the Bella Giuditta,' cited, 1 Rob., 147. It was enacted by the 17 and 18 Vict.. 123 (passed at the time of the Crimean war, 1854), that if any person within the British dominions, or any British subject in any foreign country, should wilfully or knowingly take, acquire, become possessed of, or interested in, any stocks, funds, scrip, bonds, debentures, or securities for money which, since March 29, 1854, had been, or which, during the continuance of hostilities as aforesaid, should be creat d, entered 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, acquiring, becoming possessed of, or interested in any such stocks, funds, scrip, bonds, or debentures as aforesaid, should be guilty of a misdemeanour. This did not apply to the case of a claim on the estate of a deceased person, nor to an execution fc debt, nor to an interest in a bankrupt's estate, nor to Russian Governm notes used in circulation. 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 endorsed to an alien enemy, the latter was allowed to enforce it on the return of peace.1 § 12. It is equally illegal,' says Kent, '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 a 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.' Wheaton says that no subject of an ally can trade with the common enemy in a conjoint war, without being liable to the forfeiture, in the prize courts of an ally, of his property engaged in such trade. And that, as the rule with respect to the subjects of the belligerent State can be relaxed only by the permission of the sovereign power of the State, so the rule, with respect to the subjects of allies, can be relaxed only by the permission of the allied nations, according to their mutual agreement.2 § 13. One of the immediate consequences of the position. in which the citizens and subjects of belligerent States are placed, by the declaration 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.3 But this extreme right, founded on the positive law of nations, has been stripped of much of its rigour in modern warfare, by 1 Antoine v. Morehead, 6 Taunton Rep., p. 237, and see post, vol. ii. p. 154. 2 Kent, Com. on Am. Law, vol. i. p. 69; Wheaton, Elem. Int. Law, pt. iv. ch. i. § 14. 3 See post, vol. ii. pp. 95-98. But previously to the siege of Paris, during the war of 1870, all Germans living in that city were compelled to leave it. 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 extreme 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 affirmative of common right, or the public law of Europe. Vattel also says that the sovereign who declares war cannot 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 favour 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 conventional law, and by municipal ordinances and regulations.' § 14. In England 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 to body or goods,' until it be known how English merchants were treated by the enemy." 1 Kent, Com. on Am. Law, vol. i. p. 56; Vattel, Droit des Gens, liv. iii. ch. iv. § 63; Emerigon, Traité des Assurances, ch. xii. sec. 35; Bynkershoek, Quæst. Fur. Pub., cap. ii. § 7. Letters of advice, correspondence, and intelligence, from an English subject in England, to the enemy to enable the latter to cause annoyance or to defend themselves, written and sent in, in order to be delivered to them, are, though intercepted, overt acts of treason.-R. v. Hensey, I Burr. R., 650; R. v. Stone, 6 D. and E., 527. For cases concerning the unlawfulness of various dealings with residents of the insurgent States, during the American Civil War of 1861-65, see the Reform,' 3 Wall., 617; United States v. Weed, 5 ib., 62; the 'Gray Jacket,' ib., 342; the Hampton,' ib, 372; the Sea Lion,' ib, 630; the Cotton Cases, 2 Ct. of C. C. R. (Nott and H.), 529; S. C., 6 Int. Rev. Rec, 21; Blakeley v. United States, 2 Ct. of C. C. R. (Nott and HD, 3:3; the 'David E. Wolf,' 1 Int. Rev. Rec., 194 * This seems to have been a common rule of equity among all the northern nations; for we learn from Stiernhook, that it was a maxim among the Goths and Swedes, Quam legem exteri nobis posuere, eandem LUIS DONE MENS. -See Black. Comm., ch. vii. By the statute of 27 Edward III., c. 17, foreigners were to have convenient warning of forty days, by proclamation, to depart the realm with their goods. The act of congress of July 6, 1798, authorised 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 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 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.' 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 favour of the milder principle, nevertheless, 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 travelling in France. The pretext for this exercise of the extreme right of war was the capture of French vessels in the bay of Audière 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.1 § 15. What we have said of the detention of the enemy's person, also holds good with respect to the right to seize and 1 Massé, Droit Comm., liv. ii. tit. i. ch. ii. §§ 1, 2; Thiers, Hist. du Cons. et de l'Empire, liv. xvii.; Las Cases, Mémoires de Napoléon, vol. vii. pp. 32, 33; U. S. Statutes at Large, vol. i. p. 577; Bello, Derecho Internacional, pt. ii. cap. ii. § 2; Heffter, Droit International, § 126. |