All the sub

jects of a belligerent State

at war with the common enemy.

CHAPTER IV.

OF THE STATE OR CONDITION OF WAR.*

WHEN war exists between two States, all the individual members of one State are the enemies of all the individual members of the other belligerent State. This is a necessary consequence from the fact that every State is an aggregate of individual members: and the usages of nations have invariably been in accordance with this result of the condition of war. Not that each individual member of one State is allowed to exercise all the rights of war with regard to all individual members of the other State: this, which was once the case, has been mitigated by the practice of modern times, and the exercise of active hostilities, as we shall subsequently have occasion to observe, is confined to those who are expressly commissioned for the purpose. But the state of war exists among those members of belligerent States who are not engaged in active hostilities; no pacific relations, of whatever nature, can be entertained between them, unless under the provisions of express convention: all trade is suspended, no contracts are legal, no

[* A special difficulty attends every effort to place in their true light and relations the practical rules by which the conduct of wars is regulated. Grotius's method, which is followed generally in the text, of opposing the extreme "jus belli" to the "temperamenta" which are in actual use, has the disadvantage of shocking the sensibilities of the reader without proportionate gain in the way of truthful exhibition. On the other hand, many thoroughly accepted doctrines, such as the right in certain circumstances to detain the enemy's citizens and to arrest the payment of debts due to them, can only be rendered intelligible by reference to the broad principles of which the so-called extreme rights of war consist.-ED.]

debts can be enforced, and no suits sustained in courts of law, by or against an enemy.

bidden.

The prohibition to trade with the enemy has existed All trade forin all countries for a great length of time, and has sometimes been enforced with great rigour. In 1740 Spain issued an ordinance forbidding any trade with England, either directly or through neutral nations, on pain of death and confiscation of goods; (1) but fiscal punishment is all that is usually inflicted. Bynkershoek speaks of this cessation of commercial intercourse as inseparable from the nature of war, "ex naturâ belli commercia inter hostes cessare non est dubitandum ;” (2) and Valin mentions it as a thing uncontested in his time. It is not even permitted to insure enemy's property at sea; it was once the custom in England to make such insurances, and there were instances of its being done so lately as the Seven Years' War; but the practice is now held unlawful in our own country, and in most others, as it has long been in France; (3) but this is rather a regulation of municipal law than part of the Law of Nations, though emanating from the rule we are now considering.*

(1) Moser, Versuch, IX. I. 66. (2) Bynk. Quæst. Jur. Pub. lib. I. c. III.

III.

(3) Valin, liv. III. tit. VI. art.

[* The leading case on the whole of this subject, including that of "Licence to trade," mentioned in the next paragraph, is that of "The Hoop" (1 Robinson's Admiralty Reports, p. 196), decided by Sir W. Scott. A thorough review of that case, with an account of the law as settled by recent cases in England, is given in Tudor's "Leading Cases in Mercantile and Maritime Law." Dr. Abdy's notes to his edition of Kent's Commentaries, chap. IV., may also be consulted for the later expressions of the rules of law in English courts. One important class of questions that presents itself is that connected with domicile. If a subject of a belligerent State is domiciled in a neutral country, he acquires all the freedom of trade enjoyed by a neutral citizen. On the other hand, it is illegal for a subject of a belligerent State to import in

Licenses to trade during

war.

The prohibition to trade with an enemy may be suspended by an express act of the sovereign of a State; for as the sovereign of a State makes war, and entails upon his subjects all the consequences of that relation, he is clearly competent to suspend any part of those consequences, as far as depending on his own power. Licenses to trade with an enemy have accordingly been

a neutral ship goods purchased in the territory of the enemy after the commencement of the war. It is not allowable for the subject of an ally to trade with the enemy during a conjoint war without being liable to forfeiture of his property engaged in such trade in the court of his ally. Where an ally grants a trade licence to its own subjects, Sir W. Scott said (in the case of the Neptunus, 6 Rob. 406), "it should be shewn either that the practice is of such a nature as can in no manner interfere with the common operations, or that it has the allowance of the confederate State." Any country or port of which the enemy is in the occupation, though taken from a neutral, will, for the purpose of the rule forbidding intercourse with the enemy, be considered as being the enemy's country where it is recognised by the other belligerent as such. It seems, too, to be a settled principle that the produce of the enemy's colony or other territory is treated as hostile property, whatever be the national character or domicile of the owner; and a vessel navigating under the flag and pass of a foreign country is likewise invariably treated as bearing the national character of the country under whose flag she sails. (Robinson's Admiralty Reports, I. 1, The Vigilantia; V. 161, The Vrow Anna Catharina.) The question of the liabilities incident to domicile, in reference to the present matter, are discussed at some length, and the chief cases passed in review, in Wheaton's "Elements," Part IV. chap. I. It is to be noticed that in the Crimean War, an English order in council of 15th April, 1854, permitted British subjects to trade freely at Russian ports not blockaded in neutral vessels, and in articles not contraband, but not in British vessels. The French orders were to the same effect. The Russian declaration of the 19th of April, 1854, permitted French and English goods, the property of French or English citizens, to be imported into Russia in neutral vessels. The French and Russian governments allowed private communications, not contraband in their nature, to be exchanged between their subjects by telegraph. (See Dana's note to Wheaton.) The general rule seems to be that all contracts made with the enemy during the war are absolutely void, and with respect to those which were made before the war, all right of action upon them is suspended till after the war. In the case of a continuing contract, as that of partnership, even though created before the war, it is dissolved ipso facto by the war.-ED.]

granted by governments in numerous instances. But the manner in which these licenses have been granted is a proof of the rule as to the prohibition of commerce, to which they are exceptions. They are interruptions as far as they go of the relation of war. Bynkershoek, speaking of granting such licenses, says, that when the want of each other's commodities produces this permission to trade, the state of war is, so far, suspended, utcunque autem permittas, sive generaliter, sive specialiter, semper, si me audias, quod ad hæc, status belli suspenditur." (1) The rules of our courts coincide with this opinion, the construction of licenses being strict, and deviation from the express permission of the license entailing the consequences resulting from trade with an enemy, the goods being confiscated if not in accordance with the terms and conditions of the license.

66

considered as

As a nation consists of an aggregate of individuals, The property the property of a nation is the property of all its indi- of individuals vidual members; and, as a consequence, a claim to the property of the State they indemnification for injuries sustained from a foreign belong to. State may be satisfied by a seizure of the property of any of the individual members of that State." The practice of States has invariably proceeded upon the admission of this basis. Grotius remarks upon this point that, though one person is naturally not responsible for the offences of another, yet that, by the Law

(1) Quæst. Jur. Pub. lib. I. c. III.

[* This is not quite a satisfactory or safe argument to rely upon in order to justify the practice adverted to. The property of a nation is not the property of all its individual members as existing at any given moment. The State in whom the ultimate ownership vests is trustee for all its component individual members for all time, and, on this ground, in the case of a seizure of property belonging to any one of its members by the representatives of a foreign State, it is morally bound to make the loss good. A knowledge of this general liability in some measure justifies the seizure of private property in war.-ED.]

Persons and property of

to seizure.

of Nations, "jure gentium voluntario," the whole property of the individual members of a State are responsible for the debts or obligations of the State or of the sovereign. (1) And Vattel is still more explicit on this subject; he says, "the property of individuals is, in the aggregate, to be considered as the property of the nation, with respect to other States. *

A nation being considered, by foreign nations, as constituting only one whole, one single person, all their wealth together can only be considered as the wealth of the same person.

If

one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation until the debt be discharged." (2) Many very important results proceed from this basis, among them the right of reprisals, by which the property of any subjects of a State are seized to afford indemnity for injuries sustained from either the same or other subjects of the same State.

The state of war thus including all the subjects of the enemies liable belligerent powers, and all their property responsible for the liabilities of the State of which they are subjects, the persons and property of enemies found in a belligerent State, when war breaks out, may be right

(1) De Jure, lib. III. c. II. § 2.

(2) Vattel, Droit des Gens, liv. II. ch. VII. § 81, 82.

[Rather" by a technically strict application of the legal principle." The English right to what are called "Droits of Admiralty" is an instance of the existence and validity (at one time at least) of the most rigorous rules of war in this respect. An account of this right will be found in Sir W. Scott's judgment in the case of The Rebekkah (1 Rob. Ad. Rep. p. 227). He says, that the "grant to the Lord High Ad"miral (evidenced as it was by the Orders in Council of 1665, and by "the subsisting practice), gives him the benefit of all captures by whom"soever made, whether commissioned or non-commissioned persons, "under certain circumstances of situation and locality, that is, of all ships and goods coming into ports, creeks, or roads of England or