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In the second case the United States has recognized the principles that such persons are immune from injury and their property from confiscation so long as they observe their duty of acquiescence to the occupying government. The duties of the army in this connection are prescribed in the Hague conventions and in Lieber's instructions. Special instructions to army officers are also usually issued providing rules for military government. It is a remarkable fact that during General Scott's occupation of parts of Mexico in 1846, he enforced the general rule of paying for requisitions and levying only contributions in lieu of taxes to pay for the civil administration of the territory, until he had received special instructions from Washington to adopt a harsher practice. It was thought that Mexico was continuing the war because the civil population was not feeling its hardship, consequently the instructions ordered him to support his army by uncompensated seizures. Very reluctantly he undertook this policy, which is contrary to modern international law and in his opinion at that time was inexpedient. Here was a case where the discretion of the general on the field was more efficient in enforcing the law of war than that of authorities higher up.11

The conduct toward non-combatants in the actual zone of hostilities is also provided for in the Hague conventions. A number of early treaties provided for the immunity of noncombatants in person and the payment for all requisitions.12 The Hague conventions besides covering these points forbid unnecessary injuries to non-combatants, the bombardment of undefended towns, and pillage. Similar matters are covered in Lieber's instructions. Special statutes and instructions, however, especially during the Civil war, have required a far harsher treatment.13 The treaties and instructions covering these points are law and enforceable through the exercise of penal jurisdiction by military commissions and through executive coercion. The preservation of the rights of non-combatants may also be enforced through laws providing for their indemnification for requisitions, after the war. This is provided for in the provisions of the Hague conventions and Lieber's instructions which require the giving of cash or receipts, good after the war for all requisitions. In the Civil war by the captured and abandoned property acts the United States provided for the indemnification of non-combatants. A sum equal in value to all requisitions was to be deposited in the treasury and all persons were compensated from this fund if they could prove that they had taken no active part in the rebellion.

11 Moore's Digest, 7;282-285.

12 Treaties with Prussia, 1785-1796, art. 23, p. 1414; 1799-1810, revived 1828, art. 23, p. 1444; Mexico, 1848, art. 22, p. 1117; Italy, 1871, art. 21, p. 975.

13 Confiscation act, July 17, 1862, 12 stat. 589. On confiscation of cotton and slaves during the Civil war see Moore's Digest 7;300-366. For orders during Mexican war see Moore's Digest 7;282-285.


The law governing the conduct of the naval authorities is contained in statutes, regulations, instructions, and the opinions of courts.16 Naval courts martial with jurisdiction over offenses against the statutory articles for the government of the navy are provided, but the enforcement of the law of naval warfare is largely intrusted to the discretion of commanding officers.

(1) The duties of the navy toward enemy combatants are specified in the Hague convention of 1907 and the Geneva conventions as applied to naval warfare adopted at the same time. In 1868 a treaty was signed extending the provisions of the Geneva convention to naval war. It was not generally ratified, although the United States did so in 1882. In 1898 the United States issued a circular stating that these additional articles would serve as a modus vivendi during the war with Spain, and in consequence the Navy Department issued a General Order requiring the observance of these regulations in the treatment of The Solace”, which had been fitted out as an ambulance ship.17 Besides incorporating the principles of the Geneva convention, the Hague convention of 1907 limits the use of submarine contact mines, and the bombardment of undefended coast towns. In Stockton's Naval War Code, in force from 1900 to 1904, and in instructions issued at the beginning of wars18 the limits of hostile acts against enemy public forces have been

14 Hague Conventions, 1907, v, art. 52; Lieber's Instructions, art. 38. 15 Act March 12, 1863, 12 stat. 820. See Moore's Digest, 7;295-300.

16 Articles for the government of the Navy, Rev. Stat. sec. 1624; Regulations for the Government of the Navy of the United States, 1913, containing also permanent instructions.

17 Additional articles to Geneva Convention, 1868, Modus Vivendi, 1898, General Order of Navy Dept., and Correspondence, Malloy, Treaties, p. 1907-1924.

18Instructions to Blockading vessels and Cruisers, June 20, 1898, Gen. Ord. 492, For. Rel. 1898, p. 780.

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prescribed. In the navy regulations of 1913 it is provided that “when the United States is at war, the commander in chief shall require all under his command to observe the rules of humane warfare and the principles of international law.' It will thus be seen that, as in the case of the army, the enforcement of the duties of naval war is largely left to the executive control of naval officers.

(2) The duties of the navy toward enemy non-combatants relate largely to the exercise of the right of capturing private property at sea, but certain restrictions upon possible injury to persons are also required. Naval forces are forbidden bombarding undefended coast towns, indiscriminately laying submarine contact mines or unnecessarily cutting cables between belligerent and neutral territory, by the Hague conventions of 1907.20 These provisions are designed for the protection both of enemy non-combatants and of neutrals. The same obligations with the exception of that relating to mines were prescribed in Stockton's Naval war code and it was especially stated that non-combatants are to be spared in person and property during hostilities as much as the necessities of war and the conduct of non-combatants will permit.

The enforcement of these duties, like those required in dealing with enemy armed forces, is left to the authority of naval officers, subject to the control of the navy department through instructions and executive action.

In general the duty in reference to the seizure of enemy property at sea is enforced by the same measures as those relating to the seizure of neutral prizes. The law of prize grew up for the benefit of neutrals but because of the frequent difficulty of determining between neutral and enemy property at sea, enemy individuals are benefited by the same rules.

As pointed out in considering the law of neutrality, the seizure of prizes by public naval forces alone, their care, treatment, bringing in and adjudication are provided for in treaties, and instructions of the navy department. These provisions are made effective by such measures as the abolition of privateering, the abolition of prize money, the holding of vessels liable in damages for seizures without probable cause, and by the establishment of prize courts with adequate jurisdiction. Although

19 Navy Regulations, 1913, sec. 1635.
20 Hague Conventions, 1907, iv, art. 54, viii, ix.
21 Stockton's Naval War Code, art. 3, 4, 5.


enemy prizes benefit in the main by provisions applicable to neutrals, this is not always true. Enemy property is prima facie condemnable; therefore it is seldom that damages can be obtained for a seizure even where the vessel proves to be immune.? Also, because of this prima facie liability, the destruction of enemy prizes is not, by the Declaration of London, made subject to such grave presumptions of illegality, and the treatment to be accorded the officers and crew of enemy vessels is different from that in the case of neutrals.23

The general principle that prizes must be brought in and that title does not pass until legal adjudication applies to enemy private vessels as well as neutral. The law applied by prize courts in adjudicating enemy prizes has been considered in treating the belligerent's obligations of abstention toward neutrals and enemies.

ACTS BY THE CIVIL POPULATION. International law requires a belligerent state to prevent its citizens from performing certain acts against the person and property of enemy individuals. In a large number of treaties the United States has recognized the principle that enemy individuals in its territory are immune from injury or confiscation of property.24 During both the Mexican and Spanish wars special instructions specifically called attention to such treaties.25 The usual criminal laws of the states serve to prevent the spo

22 The Paquete Habana, 175 U. S. 677, (1899); and 189 U. S. 453, (1903).

23 The Declaration of London, 1909, art. 48-54, on destruction of neutral prizes.

24 The United States has concluded twenty-seven treaties with twentythree countries on this subject. Ten are now in force. As examples see treaty with Mexico, 1831-1881, art. 26, p. 1903; 1848, art. 22, p. 1117, Spain, 1795-1902, art. 13, p. 1645. Generally a time is specified, varying from six months to a year, in which merchants may wind up their affairs and leave the country unmolested. Supra, p. 202, note 5.

25Circular of Treasury Department to customs collectors, June 11, 1846, Br. and For. St. Pap., 34;1138, calling attention to the treaty of 1831, giving Mexican merchants the right to leave the country, and letter of Asst. Sec. of State, J. B. Moore, Moore's Digest, 7;255, calling attention to the provisions of the Spanish treaty of 1795. Spain claimed that the treaty was abrogated by the war, a claim which the United States denied. Such provisions as this would obviously be meaningless if the treaty were abrogated by war. Several of these provisions are followed by the statement that they shall not be abrogated by war; See Treaty with Prussia mentioned, supra p. 202, note 5.


liation of such aliens the same as in time of peace. The treaties would also avail to gain freedom for the alien in case of detention by executive authority unless such detention were specifically authorized by act of congress or unless martial law had been declared in the territory in question. Where such cases exist, undoubtedly the courts could not intervene to release detained enemy persons. In the alien enemies act of 1798 the detention or removal of such persons is provided for but express provision is made for the observance of treaty exemptions.26 During the Civil war numerous detentions of this kind were made, and although the courts held after the war that they were not in all cases justifiable according to the constitution, as a matter of fact while war was in progress judicial process was of no benefit to the prisoners. In this case there were, of course, no treaties providing immunity.

United States law recognizes the principle that all commercial intercourse between enemies stops at the outbreak of war and the courts will not enforce obligations due to enemies on contracts or commercial transactions made after the outbreak of war.28 The principle is, however, by no means of universal application. Private contracts valid before the war are valid after it, unless, as in the case of insurance contracts, time is an element.29 In such cases war suspends but does not abrogate contracts. Furthermore contracts made in good faith, which have no relation to the war, may be enforceable even when made during war. Such a contract has been upheld where both parties were domiciled in the same territory,30 and a devise by a United States citizen to an alien enemy, resident in the enemy country, was upheld.31

The confiscation of debts or other enemy property on land in the absence of express act of the sovereign has also been forbidden32 by the courts. After the Revolutionary war the

26 Act July 6, 1798 i Stat. 577. Rev. Stat. sec. 4067-4070. 27 Ex parte Milligan, 4 Wall. 2.

28Scholefield vs. Eichelberger, 7 Pet. 586; The Rapid, 8 Cranch 155, (1814); President's proclamation Aug. 16, 1861, 12 stat. 1262.

29N. Y. Life Ins. Co. vs. Statham, 93 U. S. 24, (1875). 30 Kershaw vs. Kelsey, 100 Mass. 561. (1868).

31 Fairfax' Devisee vs. Hunter's Lessee, 7 Cranch 603, (1813). On this general subject see Moore's Digest, 7;237-254.

32Georgia vs. Brails ford, 3 Dall. 1; Ware vs. Hylton, 3 Dall. 199; Stanbery, Att. Gen., 12 op. 72, (1866); Planters Bank vs. Union Bank, 16 Wall. 483; Williams vs. Bruffy, 96 U. S. 176, (1877); Brown vs. U. S. 8 Cranch 110, (1814).

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