persons and property of each other. They have no persona standi in judicio, no power to sue in the public courts of the enemy nation. becomes, therefore, criminal to comfort or aid the enemy.

The schooner Rapid and Cargo, 1 Gallison, 303.

It

In war all intercourse between subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the Government, or in the exercise of the rights of humanity. * Independent of all authority, it would seem a necessary result of a state of war to suspend all negotiations and intercourse between the subjects of the belligerent nations.

The Julia and Cargo, ibid., 594.

There is no legal difference, as to a plea of alien enemy, between a corporation and an individual.

Society, &c. v. Wheeler, 2 Gallison, 105.

A sale by a belligerent of a war ship to a neutral in a neutral port is invalid by the law of nations, as construed both in England and America. The Georgia, 1 Lowell, 96. See infra, §§ 388, 393.

By the law of nations, where a war exists between two distinct and independent powers, there must be a suspension of all commercial intercourse between their citizens; but this principle has not been applied to the States which joined the so-called Southern Confederacy.

U. S. v. Six Boxes of Arms, 1 Bond, 446.

The existence of war does not prevent the citizens of one belligerent power from taking proceedings for the protection of their own property, in their own courts, against the citizens of the other, whenever the latter can be reached by process.

Lee v. Rogers, 2 Sawyer, 549.

Permission cannot be granted to a citizen of the United States to send a vessel to a port under the dominion of a country with which we are at war to bring away a cargo of merchandise.

1 Op., 175, Rush., 1814.

Debts due by one belligerent state to the citizens of the other, are not extinguished by the war.

12 Op., 72, Stanbery, 1866.

The subject of neutral trade with belligerents is discussed infra, § 388; that of
extinguishment of international claims by war, supra, §§ 240, 248.
Licenses to trade with enemy are considered in Dana's Wheaton, § 410.

Judge Holmes, in a note to 1 Kent, 167, maintains that the rule is "that these contracts (made before the war) are dissolved which cannot be performed except by way of commercial intercourse." In Kershaw v. Kelsey (100 Mass., 561), it was held that the rule only prohibited

"intercourse between colonies of the two belligerents which is inconsistent with the state of war between their countries."

"In the treaty of 1848 between the United States and Great Britain it is provided that in case of war between the two nations the mailpackets shall be unmolested for six weeks after notice by either Government that the service is to be discontinued; in which case they shall have safe-conduct to return (U. S. Laws, ix, 965). During the Mexican war British mail steamers were allowed by the United States forces to pass in and out of Vera Cruz. During the civil war in the United States the United States Government adopted a rule that 'public mails of any friendly or neutral power, duly certified and authenticated as such,' found on board captured vessels, shall not be searched or opened, but be put, as speedily as may be convenient, on the way to their des ignated destination. This instruction, however, will not be deemed to protect simulated mails, verified by forged certificates or counterfeited seals.' These instructions from the Secretary of State to the Secretary of the Navy, of October 31, 1862, were communicated to the ministers of foreign Governments. (Dip. Corr., 1863, part i, 402.) In the case of the prize Peterhoff, in which the question was as to the actual ownership and destination of the cargo, the court at first directed the mails found on board to be opened in the presence of the British consul, and that he be requested to select such letters as appeared to him to relate to the cargo and its destination, and reserve the rest of the mail to forward to its destination. The British consul refused to comply with this request, protesting that the mail should be forwarded unopened. On appeal to the Secretary of State, the United States attorney at New York received directions to forward the entire mail to its destination, unexamined, notwithstanding there was reason to believe some letters in it would furnish evidence as to the cargo; and Mr. Seward wrote to to Mr. Adams, April 21, 1863, to that effect, adding, 'I shall, however, improve the occasion to submit some views upon the general question of the immunities of public mails found on board of vessels visited under the belligerent right of search. The subject is one attended with many embarrassments, while it is of great importance. The President believes it not less desirable to Great Britain than it is to the United States and other maritime powers to arrive at some regulation that will at once save the mails of neutrals from unnecessary interruption and exposure, and, at the same time, prevent them from being made use of as auxiliaries to unlawful designs of irresponsible persons seeking to embroil friendly states in the calamities of war.'

"The rule in Mr. Seward's instructions of 31st October, 1862, relates only to public mails duly authenticated; and the capturing Government reserves the right to make sure of the genuineness of the authentication. When the vessel is a private one, but carrying mails under a Government contract, like the Cunard or Peninsula and Oriental steamers, and the lines subsidized by the United States for that purpose, a Government mail agent is usually on board, having them in charge. Although this fact does not, in law, protect the mails from search, yet it affords opportunity for general arrangements between nations, and makes special arrangements between the captors and the mail agent, in particular cases, more probable."

Dana's Wheaton, § 504, note 228. As to Trent case and arrest of dispatches, see §§ 325, 328, 374.

"The protection of the interests and welfare of the state makes the application of this rule [prohibiting intercourse between belligerents] especially necessary to the merchant and trader who, under the temptations of an unlimited intercourse with the enemy, by artifice or fraud, or from motives of cupidity, might be led to sacrifice those interests.

"See United States v. Boxes of Arms (1 Bond, 446) as to the application of this rule to the States which joined the Southern Confederacy during the American civil war. See also Gay's Gold (13 Wall., 358) and United States v. Homeyer (2 Bond, 217) as to the effect of the acts of Congress, proclamations, etc., on the same rule."

2 Halleck's Int. Law (Baker's ed.), 154.

"The language of Mr. Justice Story in the cases of the Rapid and the Mary in the circuit court amounts to a clear denial of the existence of the right in question [withdrawal of property of one belligerent from the territory of the other] under any circumstances, although in the case of the St. Lawrence, subsequently decided in the Supreme Court, where the opinion of the court was given by the same distinguished judge, any direct decision of this question was studiously avoided, and that case was decided on the ground that the property had not been withdrawn from the enemy's country within reasonable time after the knowledge of the war. This exact question, as already remarked, has never been determined by the Supreme Court of the United States, nor is its decision involved as a necessary consequence in the cases which have been adjudicated before that tribunal. In a case decided in the supreme court of the State of New York it was held that a citizen of one belligerent may withdraw his property from the country of the other belligerent, provided he does it within a reasonable time after the declaration of the war, and does not himself go to the enemy's country for that purpose. In delivering the opinion of the court in this case (Armory v. McGregor) Chief Justice Thompson remarks that from the guarded and cautious manner in which the Su preme Court of the United States had reserved itself upon this particular question there was reason to conclude that when it should be distinctly presented it would be considered as not coming within the policy of the rule that renders all trading or intercourse with the enemy illegal."

Ibid., 163.

(3) BUT NOT TRUCES.
§ 337a.

"If there is one rule of the law of war more clear and peremptory than another, it is that compacts between enemies, such as truces and capitulations, shall be faithfully adhered to, and their non-observance is denounced as being manifestly at variance with the true interest and duty, not only of the immediate parties, but of all mankind."

Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 15, 1842. MSS. Inst., Mex. 6 Webster's Works, 438.

III. APPLICATION OF, TO ENEMY'S PROPERTY.

(1) PRIVATE PROPERTY ON LAND NOT USUALLY SUBJECT TO ENEMY'S SEIZURE.

$338.

Every nation at war with another is justifiable, by the general and strict law of nations, in seizing and confiscating all movable property of its enemy (of any kind or nature whatsoever), wherever found, whether within its territory or not.

Ware v. Hylton, 3 Dall., 199, 226.

War gives the right to confiscate, but does not itself confiscate, the property of the enemy which may be found in the country at the commencement of the war. When the sovereign authority shall choose to bring the right of confiscation into operation, the judicial department must give effect to its will.

Brown v. U. S., 8 Cranch, 110.

In the United States, proceedings to condemn the property of an enemy found within the territory at the declaration of war must be in execution of some existing law.

Ibid. But see the Prize Cases, 2 Black, 635.

An act of Congress merely declaring war does not authorize such confiscation.

Brown v. U. S., 8 Cranch, 110.

An island conquered and occupied by the enemy is, for belligerent and commercial purposes, his soil. The produce of that soil is liable to condemnation on the high seas while it belongs to the individual proprietor of the soil which produced it, though he is a neutral.

Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191.

Private property may be taken by a military commander for public use, in cases of necessity, or to prevent it from falling into the hands of the enemy, but the necessity must be urgent, such as will admit of no delay, or the danger must be immediate and impending. But in such cases the Government is bound to make full compensation to the owner.

Mitchell v. Harmony, 13 How., 115.

"Being enemies' property, the cotton was liable to capture and confiscation by the adverse party. (Prize Cases, 2 Black, 687.) It is true that this rule, as to property on land, has received very important qualifications from usage, from the reasonings of enlightened publicists, and from judicial decisions. 'It may now be regarded as substantially restricted to special cases dictated by the necessary operation of war' (1 Kent., 92), and as excluding, in general, 'the seizure of the private property of pacific persons for the sake of gain.' (lbid., 93.) The com

manding general may determine in what special cases its more stringent application is required by military emergencies; while considerations of public policy and positive provisions of law and the general spirit of legislation must indicate the cases in which its application may properly be denied to the property of non-combatant enemies.

"In the case before us, the capture seems to have been justified by the peculiar character of the property and by legislation. It is well known that cotton has constituted the chief reliance of the rebels for means to purchase the munitions of war in Europe. It is a matter of history, that rather than permit it to come into the possession of the National troops, the rebel Government has everywhere devoted it, however owned, to destruction. The value of that destroyed at New Or leans, just before its capture, has been estimated at eighty millions of dollars. It is in the record before us, that on this very plantation of Mrs. Alexander, one year's crop was destroyed in apprehension of an advance of the Union forces. The rebels regarded it as one of their main sinews of war; and no principle of equity or just policy required, when the national occupation was itself precarious, that it should be spared from capture and allowed to remain, in case of the withdrawal of the Union troops, an element of strength to the rebellion."

Chase, C. J.; Mrs. Alexander's Cotton, 2 Wall., 419.

As to cotton being contraband, see infra, § 373.

As to claims for indemnity, see supra, §§ 223 ff.

The humane maxims of the modern law of nations, which exempt private property of non-combatant enemies from capture as booty of war, found expression in the abandoned and captured property act of March 12, 1863.

U. S. v. Klein, 13 Wall., 128. See supra, §§ 223 ff.

"No titles were divested in the insurgent States, unless in pursuance of a judgment rendered after due legal proceedings. The Government recognized to the fullest extent the humane maxims of the modern law of nations, which exempt property of non-combatant enemies from capture or booty of war."

Chase, C. J.; U. S. v. Klein, 13 Wall., 128. See to same general effect, Lamar v.
Browne, 92 U. S., 194.

Where private property is impressed into public use during an emergency, such as a war, a contract is implied on the part of the Government to make compensation to the owner.

U. S. v. Russell, 13 Wall., 623.

During the civil war enemies' property was made liable to confiscation by certain acts of Congress, but the Government of the United States asserted no general right in virtue of conquest to compel the payment of private debts to itself.

Planters' Bank v. Union Bank, 16 Wall., 483. Supra, §§ 223 ff.; infra, §§ 352 ff.