International Law. A Treatise Volume Ii Part 14

[Footnote 189: See Twiss, II. -- 50; Rivier, II. p. 320; Liszt, -- 39, V.; Holland, _Letters upon War and Neutrality_ (1909), p. 39.]

[Footnote 190: See _Land Warfare_, -- 12.]

[Footnote 191: See _Land Warfare_, -- 13.]

[Footnote 192: See above, vol. I. -- 324.]

[Footnote 193: See above, vol. I. -- 317, p. 394, where the case of _De Jager_ v. _Attorney General_ is discussed.]

[Sidenote: _Persona standi in judicio_ on Enemy Territory.]

-- 100_a_. Formerly the rule prevailed everywhere that an enemy subject has no _persona standi in judicio_ and is, therefore, _ipso facto_ by the outbreak of war, prevented from either taking or defending proceedings in the Courts. This rule dates from the time when war was considered such a condition between belligerents as justified the committing of hostilities on the part of all subjects of the one belligerent against all subjects of the other, and, further, the killing of all enemy subjects irrespective of s.e.x and age, and, at any rate, the confiscation of all private enemy property. War in those times used to put enemy subjects entirely _ex lege_, and it was only a logical consequence from this principle that enemy subjects could not sustain _persona standi in judicio_. Since the rule that enemy subjects are entirely _ex lege_ has everywhere vanished, the rule that they may not take or defend proceedings in the Courts has in many countries, such as Austria-Hungary, Germany, Holland, and Italy, likewise vanished. But in Great Britain and the United States of America[194] enemy subjects are still prevented from taking and defending legal proceedings,[195]

although there are six exceptions to the general rule. Firstly, enemy subjects who do not bear enemy character because they are resident in neutral country or have a licence to trade or are allowed[196] to remain in the country of a belligerent, are therefore permitted to sue and be sued in British and American Courts. Secondly, if during time of peace a defendant obtains an opportunity to plead, and if subsequently war breaks out with the country of the plaintiff, the defendant may not plead that the plaintiff is prevented from suing.[197] Thirdly, if a contract was entered into and executed before the war, and if an absent enemy subject has property within the boundaries of a belligerent, he may be sued.[198] Fourthly, a prisoner of war[199] may sue during war on a contract for wages. Fifthly, if the parties, being desirous to obtain a decision on the merits of the case, waive the objection, enemy subjects may sue and be sued.[200] Lastly, a pet.i.tion on the part of a creditor who is an enemy subject, to prove a debt under a commission of bankruptcy must be admitted[201] although the dividend will not be paid till after the conclusion of peace.

[Footnote 194: In strict law also in France.]

[Footnote 195: The leading case is the _Hoop_ (1799), 1 C. Rob. 196.]

[Footnote 196: _Wells_ v. _Williams_ (1698), 1 Lord Raymond, 282.]

[Footnote 197: _Shepeler_ v. _Durand_ (1854), 14 P.C. 582.]

[Footnote 198: _Dorsey_ v. _Kyle_ (1869), 3 Maryland, 512. It would seem that the American Courts are inclined to drop the rule that an enemy subject cannot be sued; see _De Jarnett_ v. _De Giversville_ (1874), 56 Missouri, 440.]

[Footnote 199: _Maria_ v. _Hall_ (1800), 2 B. & P. 236.]

[Footnote 200: _Driefontein Consolidated Gold Mines Co._ v. _Janson_ (1910), 2 Q.B. 419; App. Cas. (1902), 484.]

[Footnote 201: _Ex parte Boussmaker_ (1806), 13 Vesey Jun. 71.]

It is a.s.serted that, in consequence of article 23 (_h_) of the Hague Regulations concerning land warfare enacting the injunction "to declare extinguished, suspended, or unenforceable in a Court of Law the rights and rights of action of the nationals of the adverse party," Great Britain and the United States are compelled to abolish their rule that enemy subjects may not sue. But the interpretation of article 23 (_h_) is controversial, Great Britain and the United States of America--in contradistinction to Germany and France--maintaining that the article has nothing to do with their Munic.i.p.al Law but concerns the conduct of armies in occupied enemy territory.[202]

[Footnote 202: It is impossible here to discuss the details of this controversy which the third Peace Conference must settle. See above, vol. I. -- 554, No. 10; Politis in _R.G._ XVIII. (1911), pp. 249-259, and the literature there quoted; Kohler in _Z.V._ V. (1911), pp. 384-393; Holland in _The Law Quarterly Review_, XXVIII. (1912), pp. 94-98; Charteris in _The Juridical Review_, XXIII. (1911), pp. 307-323; Oppenheim, _Die Zukunft des Volkerrechts_ (1911), pp. 30-32.]

However this may be, it must be especially observed that, according to British and American law, claims arising out of contracts concluded before the war do not become extinguished through the outbreak of war, but are only suspended during war, and the Statute of Limitations does not, according to American[203] practice at any rate, run during war.

[Footnote 203: _Hanger_ v. _Abbot_ (1867), 6 Wallace, 532. The point is not settled in English law, for the _obiter dictum_ in _De Wahl_ v.

_Browne_ (1856), 25 L.J. (N.S.) Ex. 343, "It may be that the effect would ultimately be to bar the action by reason of the Statute of Limitations is no answer...", is not decisive, although Anson, _Principles of the English Law of Contract_ (11th ed. 1906), p. 122, and other writers accept it as decisive.]

[Sidenote: Intercourse, especially Trading, between Subjects of Belligerents.]

-- 101. Following Bynkershoek,[204] all British and American writers and cases, and also some French[205] and German[206] writers a.s.sert the existence of a rule of International Law that all intercourse, and especially trading, is _ipso facto_ by the outbreak of war prohibited between the subjects of the belligerents, unless it is permitted under the customs of war, as, for instance, ransom bills, or is allowed under special licences, and that all contracts concluded between the subjects of the belligerents before the outbreak of war become extinct or suspended. On the other hand, most German, French, and Italian writers deny the existence of such a rule, but a.s.sert the existence of another according to which belligerents are empowered to prohibit by special orders all trade between their own and enemy subjects.

[Footnote 204: _Quaestiones juris publici_, I. c. 3: "_quamvis autem nulla specialis sit commerciorum prohibitio ipsa tamen jure belli commercia sunt vet.i.ta_."]

[Footnote 205: For instance, Pillet, p. 74, and Merignhac, p. 57.]

[Footnote 206: For instance, Geffcken in his note 4 to Heffter, p. 265.]

These a.s.sertions are remnants of the time when the distinction[207]

between International and Munic.i.p.al Law was not, or not clearly, drawn.

International Law, being a law for the conduct of States only and exclusively, has nothing to do directly with the conduct of private individuals, and both a.s.sertions are, therefore, nowadays untenable.

Their place must be taken by the statement that, States being sovereign and the outbreak of war bringing the peaceful relations between belligerents to an end, it is within the competence of every State to enact by its Munic.i.p.al Law such rules as it pleases concerning intercourse, and especially trading, between its own and enemy subjects.

And if we look at the Munic.i.p.al Laws of the several countries, we find that they have to be divided into two groups. To the one group belong those States--such as Austria-Hungary, Germany, Holland, and Italy--whose Governments are empowered by their Munic.i.p.al Laws to prohibit by special order all trading with enemy subjects at the outbreak of war. In these countries trade with enemy subjects is permitted to continue after the outbreak of war unless special prohibitive orders are issued. To the other group belong those States--such as Great Britain, the United States of America, and, unless _desuetudo_[208] has made an alteration, France--whose Munic.i.p.al Laws declare trade and intercourse with enemy subjects _ipso facto_ by the outbreak of war prohibited, but empowers the Governments to allow by special licences all or certain kinds of such trade.

[Footnote 207: See above, vol. I. -- 20.]

[Footnote 208: See Meyer, _op. cit._ p. 91.]

As regards the law of Great Britain[209] and the United States of America, it has been, since the end of the eighteenth century, an absolutely settled[210] rule of the Common Law that, certain cases excepted, all trading with alien enemies is _ipso facto_ by the outbreak of war illegal unless it is allowed by special licences of the Crown.

From the general principle a.s.serted in the leading cases,[211] the Courts have drawn the following more important consequences:--

(1) All contracts, entered into _during_ a war,[212] with alien enemies without a special licence are illegal, invalid, and can never be enforced, unless the contract was one entered into in case of necessity,[213] or in order to supply[214] an invading English army or the English fleet, or by prisoners[215] of war concerning personal services and requirements.

(2) Trading with the enemy does not become legal by the fact that goods coming from the enemy country to Great Britain, or going from Great Britain to the enemy country, are sent to their destination through a neutral country.[216]

(3) As regards contracts entered into _before_[217] the outbreak of war, a distinction must be drawn:--(_a_) Executory contracts are avoided, both parties being released from performance. (_b_) Contracts executed before the outbreak of war and not requiring to be acted upon during the war are suspended until after the conclusion of peace. (_c_) Executed contracts which require acting upon during the war are dissolved.

(4) Partnerships[218] with alien enemies are dissolved.

(5) No interest runs on debts[219] or mortgages.[220]

(6) A contract of affreightment[221] must not be fulfilled; therefore English ships must not load or unload goods in an enemy port.

(7) Contracts of insurance of enemy vessels and goods are so to be construed as to contain a proviso that the a.s.surance shall not cover any loss occurring during a war between the country of the a.s.surer and the country of the a.s.sured.[222]

(8) A life insurance policy,[223] entered into before the outbreak of war conditioning the payment of yearly premiums on pain of forfeiture of the policy, is forfeited _ipso facto_ by the outbreak of war because the payment of the premium is now prohibited. After the conclusion of peace, however, the insured may claim the equitable value of the policy arising, at the time of the outbreak of war, from the premiums actually paid.

[Footnote 209: See besides the English and American text-books quoted above at the commencement of -- 97, Pennant, Chadwick, and Gregory in _The Law Quarterly Review_, XVIII. (1902), pp. 289-296, XX. (1904), pp.

167-185, XXV. (1909), pp. 297-316; Bentwich, _The Law of Private Property in War_ (1907), pp. 46-61; Phillipson, _The Effect of War on Contracts_ (1909); Latifi, _Effects of War on Property_ (1909), pp.

50-58.]

[Footnote 210: Whereas the Admiralty Court did at all times, the Common Law Courts did not during the eighteenth century hold trading with enemy subjects to be illegal, at any rate not in so far as insurance of enemy vessels and goods against capture on the part of English cruisers was concerned; see _Henkle_ v. _London Exchange a.s.surance Co._ (1749), 1 Vesey Sen. 320; _Planche_ v. _Fletcher_ (1779), 1 Dougl. 251; _Lavabre_ v. _Wilson_ (1779), 1 Dougl. 284; _Gist_ v. _Mason_ (1786), 1 T.R. 84.]

[Footnote 211: Besides the Admiralty case of the _Hoop_ (1799), 1 C.

Rob. 196, the following are the leading cases:--_Potts_ v. _Bell_ (1800), 8 D. & E. 548; _Furtado_ v. _Rodgers_ (1802), 3 P. & B. 191; _Esposito_ v. _Bowden_ (1857), 7 E. & B. 763; the _Mashona_ (1900), 10 _Cape Times_ Law Reports, 170.]

[Footnote 212: _Willison_ v. _Paterson_ (1817), 7 Taunt, 439.]

[Footnote 213: _Antoine_ v. _Morshead_ (1815), 6 Taunt, 237.]

[Footnote 214: The _Madonna delle Gracie_ (1802), 4 C. Rob. 195.]

[Footnote 215: _Maria_ v. _Hall_ (1800), 2 B. & P. 236.]

[Footnote 216: The _Jonge Pieter_ (1801), 4 C. Rob. 79. But if the goods have been bought by the subject of a neutral State _bona fide_ by himself and are afterwards shipped through neutral country to the enemy, it is not a case of trading with the enemy; see the _Samuel_ (1802), 4 C. Rob. 284, note.]

[Footnote 217: _Melville_ v. _De Wold_ (1855), 4 E. & B. 844; _Esposito_ v. _Bowden_ (1857), 7 E. & B. 763; _Ex parte Boussmaker_ (1806), 13 Ves.

Jun. 71; _Alcinous_ v. _Nygreu_ (1854), 4 E. & B. 217; the _Charlotta_ (1814), 1 Dodson, 390.]