as well as when war has not been declared nor belligerency recognized.1 War, then, is a fact, and the rights and duties of individuals, as well as the exercise of belligerent rights by enemy governments or by parties to a civil war result from the fact of belligerency alone.2 Thus, while the Cuban insurgents were never granted belligerent rights, the Spanish Treaty Claims Commission nevertheless held that war existed in a material, if not in an international, sense, thereby granting to Spain. and to the insurgents the right to exercise belligerent rights and immunity for such injuries to private persons and property as the laws of war permit.3 The determination that no legal state of war existed between the United States and France between 1798 and 1800 was vital to the decision of the Court of Claims in the French Spoliation claims.4

It is equally necessary to determine when belligerent rights end. This is usually, though not always, fixed at the date of a treaty of peace, but in fact a treaty is not in effect until ratified and proclaimed, and belligerent rights have often been exercised (1) between the date of signing and ratification, and (2) in the case of military forces in distant colonies, after the date of ratification. If the armistice which is usually provided for in the first case is broken, or if in the second case belligerent rights are exercised after knowledge of the cessation of the war by the military commanders, liability would seem to attach to the offending government."

courts must follow the political departments of the government. Gray v. U. S., 21 Ct. Cl. 340; Cushing v. U. S., 22 Ct. Cl. 1. See also G. G. Phillimore in 4 Journ. of the Soc. of Comp. Leg. (1902), 128-134.

1 The Prize Cases, 2 Black, 636, 670; Teresa Jeorg v. U. S., Spanish Treaty Cl. Com., Briefs, v. 2, pp. 80, 81.

2 Hall, 31 and note. Prats (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2886, 2888. Span. Treaty Cl. Com., Special Rep. of W. E. Fuller, 1907, 22; Sen. Doc. 308, 59th Cong., 1st sess., 26.

4

* Gray v. U. S., 21 Ct. Cl. 340; Cushing v. U. S., 22 Ct. Cl. 1; The French Spoliation Claims, by Geo. A. King, Sen. Doc. 964, 62nd Cong., 3rd sess., 9.

⚫ Oppenheim, 329; Hall, 6th ed., 555.. The decisions of arbitral and other courts, however, leave this question in much uncertainty. John (U. S.) v. Gt. Brit., Feb. 8, 1853, Moore's Arb. 3793 (government held liable for capture made after signing of treaty of peace, on ground of failure to notify the cessation of hostilities promptly). See also the John, 2 Dodson, 336 and the Mentor, 1 Rob. 183. The Japanese government ordered the release of "all ships and their cargoes captured after Sept. 5,

It is often important to determine, on the military occupation of a town or larger area, when belligerent rights merge into the more limited. rights of a military occupant.1

In the case of maritime capture the question has occasionally been raised whether neutral vessels, captured before the treaty of peace, can be tried or condemned in a prize court after the conclusion of peace. Inasmuch as title in the captured vessel, or cargo does not pass until actual condemnation, there is some ground for the view that a prize, captured but not yet condemned when peace is concluded, must be released. While the matter must still be regarded as a moot question, the weight of authority, supported by the celebrated Doelwyk decision of the Italian Prize Commission,2 favors the view that the neutral prize may be tried after peace is concluded. Whether the prize may be condemned and confiscated is more doubtful. While some eminent authorities maintain that condemnation after peace is lawful, inasmuch as it is a punishment for an unlawful act committed before the peace, the Italian court in the Doelwyk case decreed the restoration of the vessel on the ground that condemnation and confiscation after peace is unlawful.

3

§ 101. Position of Aliens in Hostile Territory.

Without entering into a discussion of the general position of aliens in time of war, a subject which has already received some consideration (supra, § 46) it is necessary to examine the principal burdens which

1905" (the date of the treaty of peace with Russia). Imperial Ordinance No. 228, November, 1905. But see case of the Swineherd, captured by a French privateer after knowledge (though not official notification) of cessation of war. She was condemned by a French prize court. Hall, 556, criticizes the decision. See also Phillimore, III, § 521. See also cases of Torres (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3798; Ayama, ibid. 3804; Serrano, ibid. 3805 (where a claim was allowed); and Revilla, ibid. 3805.

1 Meng (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3689; Gumbes v. An award of the commissioners for liquidating the claims of British subjects on France (1834), 2 Knapp P. C. Rep. 369; Maccas in 20 R. G. D. I. P. (1913), 230 et seq.

2 Martens, Recueil, 2nd series, v. 28, 66–90.

Oppenheim, II, § 436.

Ibid.; Liszt, 5th ed., 374; Gareis, 2nd ed., 258; Brusa in 4 R. G. D. I. P. (1897), 157-175, criticizing the Doelwyk decision; decision of Japanese Prize Court in the Antiope case, Hurst and Bray's Russian and Japanese Prize Cases, London, 1913, II, 389–402.

individuals in hostile territory must bear. A long course of practice and the Hague Regulations have given some authority to certain rules for the treatment of alien enemies in the country of the territorial sovereign. But even a departure from these rules, which has occurred in several instances during the present European War, can hardly give rise to individual pecuniary claims in law. The alien enemy's individual grievances are settled by the treaty of peace, and if his country should happen to lose in the war, he is without redress. If his country should be the conqueror, indemnities may be demanded from the defeated nation, but his pecuniary remedy then depends on the bounty of his own state. In either case, he apparently has no legally protected rights, so that as between nations and alien enemies, the rules of war have only a moral and not a legal sanction. If the transgressor of the rules should be victor in the conflict, no legal means exists for compelling him to accord redress to injured alien enemies. While he may be held more accountable to neutral aliens, either as victor or vanquished, for certain transgressions of the rules of war, there are many respects in which neutral aliens domiciled in enemy territory share the burdens of war equally with alien enemies.

Neutral aliens domiciled in an enemy state, with their property there situated, are exposed to the consequence of actual belligerent operations to the same extent as subjects of the enemy. This rule applies not only to aliens who permanently reside in a country, but to those who come with knowledge of the existence of the war, and particularly to those who came before the war and continue to reside for a period longer than necessary for convenient departure. Both with respect to his property and his capacity to sue such an alien is deemed an enemy.2 Foreign Offices and municipal and international courts have frequently laid down the rule that neutral property permanently situated in enemy

1 1 Hall, 740; Bentwich, 29. The rule that war makes subjects of one belligerent the enemies of the government and subjects of the other is admitted. It applies equally to civil and international war. See also U. S. v. Cooke (The Venice), 2 Wall. 258, 274; Mrs. Alexander's Cotton, 2 Wall. 419; Jecker v. Montgomery, 18 How. 110; White v. Burnley, 20 How. 235, 249.

2 Whiting's war powers under the Constitution, 43rd ed., Boston, 1871, p. 341. Society v. Wheeler, 2 Gallison, 105. The rule that aliens entering or continuing to reside in enemy territory may be treated as enemies is found in Grotius, III, 4, §§ 6, 7.

territory, or property of neutrals who voluntarily enter or continue to reside in belligerent territory assumes the risks of injury incident to war. In strict law, even the property of loyal citizens situated in enemy territory is subject to the casualties of war as enemy property.2 The particular liabilities to which such property is thus ordinarily exposed will be examined presently. It is here merely to be noted that on land, the fate of property situated in belligerent territory depends not on the nationality or loyalty of the owner, but on the location of the property. The only important qualification of this rule relates to neutral property temporarily in the belligerent country. If this is used or destroyed for recognized belligerent reasons, the owner is entitled

1 Palmerston's opinion in Greytown, Copenhagen and Uleaborg bombardments. Hansard's Debates, 3rd series, v. 146, pp. 37, 49; Granville to Lord Lyons, Jan. 11, 1871 and Granville to Sackville West, March 1, 1871, Hale's Rep., Appendix, For. Rel., 1873, v. 3, 368-370, 65 St. Pap. 458.

Mr. Cass, Sec'y of State, to Mr. Burns, April 26, 1858, Moore's Dig. VI, 885; Mr. Seward to Mr. Wydenbruck, Nov. 16, 1885, ibid. 885; Mr. Fish, Sec'y of State, to Mr. Washburn, April 28, 1871, For. Rel., 1871, 335; Mr. Fish to Mr. Thornton, May 16, 1873, Moore's Dig. VI, 890; Mr. Fish to Mr. Gibson, Dec. 30, 1875, ibid. 891; Mr. Bayard to Mr. O'Connor, Oct. 29, 1885, ibid. 891; Whiting's war powers, 352; 12 Op. Atty. Gen. 21; 22 Op. Atty. Gen. 315. See also Wharton's Dig. III, §§ 352, 353.

Gallego, Mesa, et al. v. U. S., 43 Ct. Cl. 444; Herrera v. U. S., 222 U. S. 558.

Cooke (U. S.) v. Mexico, Act of March 3, 1849, Moore s Arb. 2659, 2661; Haggerty, ibid. 2665; Thompson, ibid. 2669; Castel (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3710; Foster (U. S.) v. Mexico, July 4, 1868, ibid. 3349; Costa (U. S.) v. Mexico, ibid. 3724; Tongue (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3675; Brook (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3738 (Rule admitted, but award here made for property taken for military use, because loyal citizens had been granted compensation in similar cases. 16 Stat. L. 524). Same rule in Henderson (Gt. Brit.) v. U. S., ibid. 3827, Frazer dissenting in both cases, Hale's Rep. 43, 44; Laurent (Gt. Brit.) v. U. S., Feb. 8, 1853, ibid. 2671; Uhde, ibid. 2691; Bacigalupi (U. S.) v. Chile, May 24, 1897, Report, 1901, p. 151; Volkmar (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 258, 259; Upton (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 72; Orr and Laubenheimer (U. S.) v. Nicaragua, For. Rel., 1900, 826.

2 Jaragua Iron Co. v. U. S., 212 U. S. 297, 306; Page v. U. S., 11 Wall. 268; Prize Cases, 2 Black, 635; The William Bagaley, 5 Wall. 377; U. S. v. Farragut, 22 Wall. 406; Green v. U. S., 10 Ct. Cl. 466; Gooch v. U. S., 15 Ct. C. 281; Brandon v. U. S., 46 Ct. Cl. 559.

3 11 Op. Atty. Gen. 405; 12 ibid. 486, 488; Lawrence's Wheaton, 565. In practice indemnities are often paid for such loyal citizen's property as may have been used or destroyed by the citizen's own state. See Southern Claims Commission, Act of March 3, 1871, 16 Stat. L. 524.

to compensation, which is not the case with property permanently so situated. The right to use such neutral property, subject to payment of compensation, is known as the right of angary, quite analogous to the right of eminent domain.1

$102. Enemy Character.

The belligerents are entitled to exercise certain measures against enemy persons and property from which neutrals are free; but while the rule as to private property on land is comparatively simple, its location constituting the test of enemy character, private property at sea is tested by other criteria to determine whether or not it is vested with enemy character. According to the Continental practice,2 nationality is the test of enemy character, so that the subjects of the belligerents and their property bear enemy character, whereas the subjects of neutrals and their property do not. But under the Anglo-American rule, in which domicil is the test, regardless of nationality, as well as under prescribed exceptional circumstances, subjects of the enemy state do not necessarily bear enemy character, whereas neutrals may by their domicil or their acts be properly considered as enemies. Neither the Second Hague Conference nor the London Naval Conference of 1908 was able to reconcile these conflicting views concerning nationality or domicil as the controlling factors in determining the neutral or enemy character of individuals and their goods.3

Under the Anglo-American rule, the political character of private property at sea depends on the commercial domicil of its owner. This differs from civil domicil, inasmuch as it does not require long-continued

'Hall, 741; Bentwich, 27; Oppenheim, §§ 364–367. Great Britain in purchasing neutral cargoes in her ports may be regarded as availing herself of this right. A more delicate question is presented by the unlawful seizure of neutral cargoes on the high seas and their subsequent purchase when brought into port.

2 Fiore, III, § 1432 et seq.; Calvo, IV, § 1932 et seq.; Bonfils, § 1343 et seq. The recent British Aliens Restriction (Consolidation) Order, 1914, § 31, and Trading with the Enemy Proclamation, No. 2, clauses 3 and 6 modify the general rules as to enemy character. See Schuster, E. J., Effect of war . . . on commercial transactions, 2nd ed., London, 1914, p. 3-7. See also Page, Arthur, War and alien enemies, London, 1914, ch. I–IV. Infra, p. 00.

*Bentwich, 142; Westlake, II, 140; Oppenheim, II, §§ 88, 90; Laurent (Gt. Brit.) . U. S., Feb. 8, 1853, Moore's Arb. 2671; The Pizarro, 2 Wheaton, 246. Japan appears to have adhered to the principle of domicil in these matters.