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."'19 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.21 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. 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.22 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. 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 spo22The Paquete Habana, 175 U. S. 677, (1899); and 189 U. S. 453, (1903). 24 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. 25 Circular 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.20 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 1 Stat. 577. Rev. Stat. sec. 4067-4070. 27 Ex parte Milligan, 4 Wall, 2. 28 Scholefield 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. 32 Georgia vs. Brailsford, 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). courts held state confiscation acts invalid, as conflicting with the British treaty of peace. The fact that a citizen had paid his debt to the state treasury was held to be no bar to the British creditor's right of action.33 Confiscation acts by congress would undoubtedly be regarded as valid even when opposed by treaties, as acts of congress are ordinarily held to supersede earlier treaties. Whether the passage of such an act at all is within the constitutional competence of congress is a question not considered here. If the guarantee of enemies against confiscation of debts were included in the constitution, undoubtedly the privilege could be enforced even against congress by the power of the courts to declare laws unconstitutional. In the absence of a treaty, constitutional provision or federal statute, it is questionable whether state statutes confiscating enemy debts could be prevented by the courts. The confiscation of enemy private property on land when in the zone of hostilities or in territory under military government is justified on principles of necessity under the restrictions required in levying requisitions and contributions by the army. Where the property is in the belligerent state's own territory, not under martial law, the plea of necessity can not be offered. In such cases the courts have held that the property may not be confiscated unless an act of the sovereign specifically requires. The outbreak of war does not itself confiscate enemy property, although the court held that confiscation by the sovereign was compatible with international law, a view no longer held.34 Enemy merchant vessels in the belligerent's jurisdiction on the outbreak of war are subject to the same rule. By the Hague convention they may not be confiscated unless by their build they show that they "are intended for conversion into war ships." The same convention, however, permits such vessels to be detained or requisitioned with compensation where they can not leave in a short time because of "force majeure," but permission to leave in a specified time is declared "desirable" 35 The United States followed this rule in its naval instructions 33 Ware vs. Hylton, 3 Dall. 199, (1796). 34 Brown vs. U. S. 8 Cranch 110, (1814); Cargo of Ship Emulous, I Gall. 562; U. S. vs. 1756 shares of Capital Stock, 5 Blatch. 231. 35 Hague Conventions, 1907, vi. This convention has not been signed or ratified by the United States. of the Spanish war. The subject has been discussed at greater length in considering duties of abstention. Suffice it to say here that the law of the United States attempts to prevent the confiscation of such vessels as well as other enemy private property in its jurisdiction on the outbreak of war. 36 Instructions, June 20, 1898, art. 7, For. Rel. 1898, p. 780; Proclamation, Apr. 26, 1898, 30 stat. 1770. |