such character by the nationality of the owner.1 The rules of the common law as modified by the British emergency legislation following the outbreak of the present European War constitute the following classes as alien enemies: every individual or partnership firm residing in or carrying on business in an enemy country, or corporation there incorporated; every subject of an enemy state carrying on a prohibited trade in British territory, and for the purpose of the patent, designs and trade-mark acts, any subject of the enemy wherever resident, and any British corporation controlled by or carried on for the benefit of enemy subjects.2

3

All

The prohibition of intercourse between enemies has important effects upon the legal relations of nationals of the enemy states. It applies particularly to contractual relations between alien enemies. contracts entered into after the outbreak of war are void and incapable of enforcement at any time. Those concluded before the war are not void, but their enforcement is suspended until the conclusion of peace. The running of the statute of limitations is also suspended.5 Executory contracts which require fulfillment during the war are void." Existing commercial partnerships between nationals of enemy states are dissolved by the outbreak of war. Whether the same rule applies

4

1 Bentwich, op. cit., appendix, 142-147; Baty, Trade domicil in war, Journ. of Soc. of Comp. leg., August, 1908, pp. 156-166 and a new edition, London, 1915; Westlake, Trade domicil in war, ibid., April, 1909, pp. 265–268; Phillipson, Coleman, Effect of war on contracts, London, 1909, p. 33 (2nd ed., 1914).

2 Schuster, op. cit., 3-7, 45 et seq.; Page, op. cit., Ch. I.

Kershaw v. Kelsey, 100 Mass. 561. See also A. D. McNair, Alien enemy litigants, 31 Law Quar. Rev. (1915), 154-169, and Schuster and Trotter, op. cit.

Ex parte Boussmaker (1806), 13 Vesey, 71; Caperton v. Bowyer, 14 Wall. 216; Phillipson, op. cit. 70, 72. Contractual relations permitted by the rules of war, are not, of course, affected. Latifi, A., Effects of war on property, London, 1909, p. 50 et seq.; Leslie Scott in 30 Law Quar. Rev. (1914) 77-90. As to the real effect of art. 23 (h) of the Hague Convention on Land War, see Dr. Karl Strupp in 23 Ztschr. f. int. Recht, 118-159; Hans Wehberg in 15 R. D. I. (n. s. 1913) 197224; Schuster, op. cit. 14, 16, 41; Trotter, op. cit., Part I, §§ 5, 8, 12.

" Hanger v. Abbott (1867), 6 Wall. 532. The English opinion seems to be to the contrary, Phillipson, op. cit., 75.

Gamba v. Le Mesurier, 4 East, 407; Schuster, op. cit., 16; Trotter, op. cit., Part I, 12; Page, op. cit., 39.

"Griswold v. Waddington, 16 Johns. 438 (Kent); Hall, op. cit., 384; Latifi, op. cit.,

to alien enemy stockholders in corporations appears more doubtful. According to one view, believed to be the better one, the stockholders' rights and obligations are suspended until the restoration of peace; according to another, these stockholders drop out and have a right to receive the value of their respective shares as on the day of the outbreak of the war. The obligation of a state to pay its public debt is not affected by the war, even though its bonds are held by subjects of the enemy.2

Neutral aliens are left free to trade with other neutrals or with nationals of the enemy, subject to such restrictions as the acknowledged rights of the belligerents dictate. Within a certain degree municipal law imposes neutrality upon the citizens of neutral nations, and unneutral service may be punished both in municipal courts and by the belligerents. Beyond that, the restrictions imposed by belligerents upon neutral trade must be enforced by the belligerents themselves, and the danger of such punishment, usually confiscation, is the only penalty incurred by the neutral trader. By international law these restrictions upon the freedom of neutral trade are confined to the carriage of contraband, the violation of blockade, certain services rendered to the enemy and the constant liability to belligerent visit and search.3 With a view to curtailing the promiscuous capture of enemy property at sea, the Declaration of Paris of 1856 prescribed the rule, which has since been generally adopted, that the neutral flag covers enemy goods with the exception of contraband of war, and that neutral non-contraband goods are not liable to capture under the enemy flag.

The property of the citizens of an enemy state found within a belligerent's own territory may in strict law be confiscated. Modern

52; Ztschr. f. Völkerr., 1909, p. 52; Schuster (op. cit., 20-24), argues convincingly that the rule is of exceedingly narrow application, and has been misinterpreted.

1 Phillipson, op. cit., 91-95, 96-99; Westlake, 2nd ed. II, 53-55; Foreign investments in time of war, by R. A. Chadwick, 20 Law Quar. Rev. (1904), 167–185, especially p. 174; Latifi, op. cit., 54 et seq.; Schuster, op. cit., 24-27.

2 J. B. Moore in 1 Columbia L. Rev. 209 et seq. and authorities there cited; Trotter, op. cit., Part I, § 15.

3 Bentwich, op. cit., 108.

4 Brown v. U. S., 8 Cranch, 110; Kent's Comm. I, 1, 13; Page, op. cit, 14 et seq.

practice, however, has practically abrogated this rule and substituted the more humane principle that such property is inviolable. Treaties have confirmed this practice. Most of the treaties of the United States with foreign powers provide not only for exemption from military service or contributions in lieu of such service, but also for exemption from forced loans or military exactions or contributions. Where the property of enemy individuals appears likely to be of service to the enemy in his military operations, as ships in certain cases, arms and ammunition, it may be sequestrated to prevent its reaching him and be restored at the end of the war,1 and it is always subject to eminent domain on payment of compensation. Inasmuch as alien enemies may be expelled, less rigorous measures, e. g., concentration, prohibition of residence in certain defined areas, registration, and temporary detention, especially when there is danger of their serving the enemy, appear to be justified. Various measures of supervision over alien enemies have been resorted to by the belligerents in the present European war.2

The person and property of neutrals are in principle subject to such exceptional measures of jurisdiction and to such exceptional taxation and seizure for the use of the state as the existence of hostilities may render necessary, provided that no greater burden is imposed upon aliens than upon nationals.3

The property of citizens of the enemy state on hostile territory, i. e., in territory in which one of the belligerents becomes and exercises the rights of a military occupant, is, strictly speaking, inviolable. This

1 Latifi, A., op. cit., 40. The French decree of Sept. 27, 1914 forbidding Germans and Austrians to engage in "any commercial transaction in France" seems legitimate. But the forcible liquidation of all German and Austrian concerns, and the sequestration and retention of all moneys received in the liquidation, for the benefit of French creditors or as security for a possible future indemnity to be exacted, seems an unwarranted extension of belligerent rights. As to the position of foreign commercial enterprises in Germany during the war see Bundesratsordnung of Sept. 4, 1914 and Dr. Waldecker in 19 Deutsche Juristen-Ztg., Oct. 1, 1914, 1160-1164.

2 See, e. g., The British Aliens Restriction Act, 1914, and Orders in Council Aug. 5 and 12, 1914; Page, op. cit., 11-12 and appendices.

This would include the right of angary by which foreign or national vessels may be seized in the ports of the state and compelled to transport soldiers or render other military service. Phillimore, op. cit., III, 50; Hall, op. cit., 737.

rule has been confirmed by the Hague Regulations of 1899.1 It is, however, subject to certain modifications: (a) Certain kinds of property are considered lawful booty, e. g., arms, horses, and military papers seized from combatants on the field of battle; (b) objects useful in military operations, such as conveyances and war material of all kinds may be taken and used, but must be restored and compensation paid for their use;2 (c) requisitions of food, money, goods and services are justified by the necessities of war, and then only. They must be paid for or receipts given to be redeemed later;3 (d) contributions or payments over and above the usual taxes may be levied on all the inhabitants. The method of levying them is provided by the Hague Regulations. Such a wide discretion, however, is vested in the military commander as to the purposes for which they may be levied and as to their amount, that the restrictions imposed by the general rule and its strictly limited exceptions, are greatly weakened. The property of neutral subjects in hostile territory is liable to the same burdens as that of subjects of the enemy. The proposals of Germany and the United States at The Hague to grant neutral property greater privileges were defeated by the combined opposition of several of the other great powers.

The private property of alien enemies at sea is subject to capture, unless, where cargo, it is protected by a neutral flag; whereas the property of neutrals, ship or cargo, is exempt from capture, unless contraband. The first of these general rules has resisted the vigorous agitation of several countries, led by the United States, to secure immunity for the private property of enemies at sea, not contraband of war, although several states, by treaty, have agreed to abide by this more enlightened practice. The general rule above mentioned is

1 Latifi, op. cit., 29 et seq.

2 Hague Regulations, art. 53.

'Hague Regulations, art. 52; Spaight, J. M., War rights on land, London, 1911, p. 381; Pont, Ch., Les réquisitions militaires, Nancy, 1905.

'Hague Regulations, arts. 49, 51.

Cases are enumerated in Latifi, op. cit., 32 et seq.

• Westlake, op. cit. II, 284 et seq.; Frankenbach, C., Die Rechtsstellung von neutralen Staatsangehörigen in kriegsführenden Staaten, Marburg, 1910.

7 Bentwich, op. cit., 108 et seq. 132; Latifi, op. cit., 74 et seq.

1

exceedingly difficult of application, owing to the difficulty in determining the enemy or neutral character of vessel or cargo. The flag is generally a prima facie test as to neutral property, but not as to enemy property. On the continent the enemy or neutral character of cargo is determined by the nationality of its owner, whereas in Great Britain and the United States this is determined by his commercial domicil. The question is further complicated by uncertainty as to who is the owner, consignor or consignee, by doubt in certain cases where ownership is transferred while goods are in transitu-though doubts are generally construed against the transferee 1-by the origin of certain kinds of produce, whether from neutral or from enemy soil (being enemy property in the latter case, though owned by a neutral), and innumerable other problems to which the question has given rise.2 Certain kinds of property, however, are exempt from maritime capture. By Convention VI of the Hague Conference of 1907 merchant vessels of the enemy in the ports of a belligerent are allowed a reasonable time to discharge and leave.3 Exemption from confiscation is likewise extended to vessels which left their last port before the commencement of the war and are found on the high seas still ignorant of its existence. Where detention is necessary they must be restored after the war, or where requisitioned, compensation must be made. This rule extends also to enemy cargo under the above circumstances. The rule that enemy vessels with their enemy cargo may be captured, is also subject to exception in the following cases: (a) vessels engaged in religious, scientific and philanthropic missions; (b) cartel ships carrying exchanged prisoners; (c) hospital ships; (d) personal effects of passengers and crew; (e) fishing vessels; (f) postal correspondence and, as between some nations, mail steamers; and (g) submarine cables.4

1The Vrouw Margaretha, 1 C. Rob. 336.

2 Halleck, op. cit. II, ch. 22, p. 96 et seq.; Wehberg, Hans, Capture in war on land and sea, London, 1911.

'Page, op. cit., 16-19; J. B. Scott in 2 A. J. I. L. (1908), 261; Oppenheim in 8 Ztschr. f. Völkerrecht (1914), 154 et seq.; Baty in 26 Jurid. Rev. (1914), 256. Supra, p. 62 note 2.

4 Latifi, op. cit., 103 et seq.