police authorities and is subsequently released by decision of a court, the Executive has taken the position that the restoration of the alien to his rights by regular judicial proceedings releases the government from legal liability. Equitable considerations, however, have been held in flagrant cases to warrant a recommendation to Congress for the payment of an indemnity as an act of grace.1

POSITION IN WAR

$46. Aliens in War.

But brief mention can be made of some of the more important phases and general principles of the alien's position in time of war. During the nineteenth century the theory gained ground steadily that war is primarily a relation between states, and should so far as possible leave unaffected the rights of person and property of noncombatants. The theory has been confirmed in practice by treaties between states and by international conventions, such as those at The Hague. While in strict law, war makes enemies of the subjects of the respective belligerents and authorizes their expulsion from the belligerent territory, a network of treaties has established the practical rule that aliens, nationals of an enemy state, may continue to reside, provided they maintain a neutral position, similar to that of the nationals of neutral states. In the case of merchants, nationals of the enemy state, this permission to reside and trade is usually limited to six months or one year, while in the case of others who might be regarded as alien enemies and who are engaged in peaceful occupations, provision is usually made for the security of their persons and property and their unmolested residence. We may quote the customary provision of the treaties of the United States:

"If by any fatality, which cannot be expected, and which may God. avert, the two contracting parties should be engaged in a war with each other, they have agreed and do agree, now for then, that there shall be allowed the term of six months to the merchants residing on the coasts and in the ports of each other, and the term of one year to those who dwell in the interior, to arrange their business, and transport their effects wherever they please, with the safe conduct necessary to protect

1 Claim of 3 members of crew of Norwegian ship Ingrid, Oct. 8, 1914, H. Doc., 1172, 62nd Cong. 2nd sess.

them and their property, until they arrive at the ports designated for their embarkation. And all women and children, scholars of every faculty, cultivators of the earth, artisans, mechanics, manufacturers, and fishermen, unarmed and inhabiting the unfortified towns, villages, or places, and, in general, all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the belligerent in whose power, by the events of war, they may happen to fall; but, if it be necessary that anything should be taken from them for the use of such belligerent, the same shall be paid for at a reasonable price.1

It is a general rule, rigorously enforced, that trading between enemies is prohibited during the war.2 The principle enunciated by Bynkershoek: "Ex natura belli commercia inter hostes cessare non est dubitandum," has become firmly imbedded in the practice of nations, although a state may, for reasons of expediency, permit an exception by granting individuals a license to trade with the enemy. Property found violating the rule is liable to confiscation. The subject is extremely complicated and its difficulty is increased by the various criteria of enemy character applied to the ownership of the property engaged in the forbidden trade.3 This is equally true of most private property of enemies at sea, which is still, notwithstanding the vigorous objection of many nations, subject to capture by belligerents. The British and American rule of testing enemy character, for purposes of trading and maritime capture, by the trade domicil of the owner, differs fundamentally from the continental practice of determining

1 Art. 21, treaty of Feb. 26, 1871, between the U. S. and Italy, Malloy, Treaties, etc., 1910, I, 975.

2 Halleck, International law, London, 1908, II, ch. 23, p. 143 et seq.; Bentwich, N., Law of private property in war, London, 1907, p. 47. This rule applies in AngloAmerican law only to persons resident in the respective belligerent states. See the Mashona, 2 n. s. Journ. of the Soc. of Comp. Leg. (1900) 326-341. See British Trading with the Enemy Act, 1914, 4 and 5 Geo. 5, ch. 87 and Proclamation No. 2, Sept. 9, 1914 and amendment Oct. 8, 1914. See also Schuster, E. J., The effect of war and moratorium on commercial transactions, 2nd ed., London, 1914, pp. 7-12 and appendix; Trotter, William F., The law of contract during war, London, 1914, Part I, § 9; Page, Arthur, War and alien enemies, London, 1914, 34 et seq., and Scott, Leslie, Trading with the enemy, 2nd ed., London, 1914.

Halleck, ibid. II, 96 et seq.; Schuster, op. cit., 7; Trotter, op. cit., part I, § 10.

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

The prohibition of intercourse between enemies has important effects upon the legal relations of nationals of the enemy states.3 It applies particularly to contractual relations between alien enemies. All 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

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) 197– 224; 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.1 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

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.