B. Exemption from the operation of war is exactly coextensive with the maintenance of the non-combatant

character.

break of war, disone tinguishing beIt tweencomto batant and

non-com

confers on

The outbreak of war operates, as between non-com- The outbatant and non-combatant, to put an end to all nonhostile intercourse between individual subjects of the and individual subjects of the other belligerent state. operates, as between combatant and non-combatant, confer upon each certain rights and to impose certain batant, corresponding duties. It imposes upon combatants an each cerobligation to respect the non-combatant character, and tain rights to abstain from acts of unnecessary violence in regard to individuals therewith endowed. It imposes upon noncombatants duties corresponding to their rights, viz. to obligaabstain from exercising combatant functions, and to submit to certain impositions necessary to the conduct of belligerent operations.

and im

poses certain corresponding

tions.

of the ancients

all sub

rents in

In the days of old by the outbreak of war between The wars states each and every subject of either belligerent was placed in a condition of active hostility in respect of each involved and every subject of the other. But advancing civiliza- jects of the tion having dictated the confining of the waging, and as belligemuch as may be of the operation, of war to the public active armed forces of the belligerents, individuals belonging to hostility. the non-combatant classes so created must refrain from the exercise of warlike acts. The assumption, however, All subof non-combatant does not constitute an abdication of jects of enemy character. Though active hostilities are forbidden states are still legal to subjects not being members of the public armed forces enemies. of a belligerent state, all subjects of one belligerent are The outenemies of all subjects of an opposing belligerent. There war opercannot be a war of arms and a peace of commerce'. ates, (I.) As beAll commercial intercourse, correspondence and business tween Nondealing between subjects of hostile states is, therefore, and Non

1 Sir John Nicholl in Potts v. Bell, 8 D. and E. 554.

enemy

break of

Combatant

Combatant; to

put an end to all nonhostile

inter

dividual

absolutely interdicted, except in so far as they arise from necessity or by special licence'.

All existing commercial partnerships between subjects course be- of opposing belligerents are ipso facto dissolved by the tween in outbreak of war; and no new partnerships may be formed during the course of the struggle, even although designed to come into operation only after the establishment of peace'.

subjects

of the one and individual subjects

of the op

ligerent. (1) Tra

ding with the enemy

with cer

tain ex

No business contract entered into before the war can posing bel- be enforced during its continuance. Of such contracts some are merely suspended' by the outbreak of hostilities, some altogether avoided. Private debts already conis illegal, tracted at the time of the rupture are suspended as to payment. In days gone by such debts were commonly ceptions. held to be confiscable at the hands of the Government of Partner- the debtor". In 1794 the United States and Great ships are dissolved. Britain declared for the principle of the exemption of Private debts from confiscation. By treaty signed at London on ready conNovember 19, they agreed that, "Neither the debts due tracted are "from individuals of the one nation to the individuals suspended "of the other, nor shares, nor monies which they may "have in the public funds or in the public or private

debts al

as to ment.

pay

banks, shall ever in any event of war or national differences, be sequestered or confiscated: it being unjust "and impolitic that debts and engagements contracted

1 Potts v. Bell, 8 D. and E. 548. Antoine v. Morshead, 1 Marsh. 558. Ricord v. Bettenham, 3 Burr. 1734; 1 Bl. 563. Anthon v. Fisher, Dougl. 649 n. Brandon v. Nesbitt, 6 D. and E. 23. Cornu v. Blackburne, Dougl. 641. Flindt v. Waters, 15 East, 260. Wells v. Williams, 1 Ld. Raym. 282. Vandyck v. Whitmore, 1 East, 475. The "Hoop," 1 C. Rob. 196. Esposito v. Bowden, 4 E. and B. 963, 7 E. and B. 763. Reid v. Hoskins, 4 E. and B. 979; 5 E. and B. 729; 6 E. and B. 953.

2 Griswold v. Waddington, 16 Johnson, 438, cited by Willes, J., in Esposito v. Bowden, 7 E. and B. 785.

3 Ex parte Boussmaker, 13 Ves. Jr. 71. Alcinous v. Negreu, 4 E. and B. 217.

4 Rolle's Abr. 195. Ex parte Lee, 13 Ves. Jr. 71. Furtado v. Rodgers, Gamba v. Le

3 B. and P. 191. Brandon v. Curling, 4 East, 410.

Mesurier, 4 East, 407.

5 Wolff v. Oxholm, 6 M. and S. 102.

"and made by individuals having confidence in each other, "and in their respective Governments, should ever be destroyed or impaired by national authority, on account

are not

"of national differences and discontents'." And in 1802 Such debts Lord Alvanley, C. J., was able to declare that England now connever had adopted, nor was likely to adopt, the course of fiscated. compelling during time of war payment to the crown of any debt due to an alien enemy from a subject.

Oxholm,

Some years later the international validity of such a measure again came up for consideration before the Court of King's Bench3. On August 16, 1807, on the Wolff v. rupture between Great Britain and Denmark, the Danish 1817. Government issued an ordinance whereby all ships, goods, money and monies' worth of or belonging to English subjects were declared to be sequestrated and detained; and, on September 9, a further ordinance appeared ordering an immediate return of all debts due from Danish to English subjects and their payment into the Danish treasury. But when in 1817 in Wolff v. Oxholm, in answer to a claim by British merchants in respect of transactions taking place before the outbreak of hostilities, a Danish subject set up payment under these ordinances to the Danish Exchequer, Lord Ellenborough held that the circumstances furnished no ground of defence, the confiscatory ordinance not being conformable to the usage of nations. The right of confiscating debts contended for by the defendant on the authority of citations from Vattel was, he said, not recognised by Grotius, and was actually impugned by Puffendorf and others, such confiscation was at no time general, and no instance of it except the ordinance in question had been known for more than a century past*.

1 Article 10 of the Treaty of London, Nov. 19, 1794, Martens, Recueil, VI. p. 358. Sutton v. Sutton, 1 Russ. and Myl. 666.

2 Furtado v. Rodgers, 3 B. and P. 201.

3 Vattel, II. 18, § 334; III. 5, § 77.

4 Wolff v. Oxholm, 6 M. and S. 92. Great Britain in 1667 recognised

a similar act of confiscation on the part of Denmark; Chalmers, Treaties, I. p. 76.

There

seems,

however,

ground for a dis

between the case of such debts and that

It is, indeed, difficult to see any sound ground of distinction, either on principle or in policy, between the no sound treatment of ordinary private personal property belonging to an enemy subject and found within the realm at tinction in the outbreak of war, and that of a private debt due from principle a subject to the same enemy. If an enemy merchant's goods which still lie on the quay without a purchaser are confiscable at the hands of the State, why should the of ordin- price of a similar parcel be exempt from sequestration ary private because the goods have reached the hands of a subject property belonging consignee? The seizure would tend in the second case as to an ene: much or as little as in the first to the attainment of the my; which object of the war. But in actual practice private, like public, debts due to enemy subjects are not in our day confiscated. The confiscation by the Confederate States of debts due to Northerners furnishes the only instance of such conduct belonging to modern times, and that instance did not pass without strong denunciation'.

is confiscable.

Executory contracts

are avoided

or sus

pended.

No contract made between enemies

Executory contracts whose terms require fulfilment during the war are avoided by its outbreak. For example a contract of insurance already effected is avoided by the outbreak of hostilities, should the property covered thereby put on an enemy character. Executory contracts not requiring such fulfilment are merely suspended during the continuance of the struggle, and revive at the conclusion of peace.

No contract entered into during the war between subjects of opposing belligerents can be enforced either during the course of the struggle or after the conclusion of peace3, during the war is en- except such a contract as is brought about by sheer necesforceable, sity, or in pursuance of express permission on the part of the belligerent Government whose enforcing authority is

1 Correspondence relating to the Civil War, p. 108. Personal Memoirs of U. S. Grant, pp. 391-392.

2 Gamba v. Le Mesurier, 4 East, 407.

410. Furtado v. Rodgers, 3 B. and P. 191.

Brandon v. Curling, Ibid.

Cf. Brandon v. Nesbitt, 6 D.

and E. 23. Bristow v. Towers, Ib. 35, and Henkle v. Royal Exchange Assurance Company, 1 Ves. 320.

3 Willison v. Pattison, 7 Taunt, 439,

sought to be invoked. In 1779 a motion was made to the English Court of Common Pleas for a habeas corpus to be directed to the commander of the "Nightingale," sloop of war, to bring up three Spanish seamen. It appeared by affidavit that the applicants were members of the crew of a Spanish privateer captured by a British cruiser and carried into Jamaica, where they were persuaded to enter on board a short-handed British merchantman, Captain Hannibal Lush commander, on a promise of wages and an immediate exchange by cartel upon arrival in England. On arrival in England Captain Lush not only turned them over to the "Nightingale" as prisoners of war, but refused to pay the wages contracted for. The application to the Court was made with a view to their discharge. But Gould, Blackstone and Nares, JJ., whilst condemning in strong terms the discreditable conduct of Captain Lush, declared themselves unable to give the slightest redress, the seamen being on their own showing alien enemies and prisoners of war, and therefore entitled to none of the privileges of Englishmen1.

All trading with the enemy, except by special licence, is in a subject, or in the subject of an ally3, illegal. In the English leading case of Potts v. Bell in 1800 it was declared to be illegal in a subject to import during war, even in a neutral bottom, goods purchased in an enemy's territory after the outbreak of hostilities by an agent there resident'.

1 The case of three Spanish sailors, 2 Black. 1324. In the parallel case of Sparenburgh v. Bannatyne, in 1797, the plaintiff was permitted to recover on his contract, he being no enemy citizen but a German neutral, who had taken service on board a Dutch vessel which was captured by the British during the course of the wars of the French Revolution. Sparenburgh v. Bannatyne, 1 B. and P. 163. Cf. Maria v. Hall, 1 Taunt. 33. R. v. Depardo, 1 Taunt. 28.

2 Potter v. Bell, 8 D. and E. 548. Cf. Gist v. Mason, 1 D. and E. 84, Bell v. Gilson, 1 B. and P. 355, and Henkle v. Roy. Exch. Ass. Co., 1 Ves. Sr. 320, where some doubts as to the necessary illegality of all trading with the enemy were expressed. Furtado v. Rodgers, 3 B. and P. 191.

3 The "Nayade," 4 C. Rob. 251.

4 See the exhaustive and convincing argument of Sir John Nicholl for the plaintiff in error.