CHAP. XXVII

Test of enemy character

of international law, due partly to the failure to draw a clear distinction between international law and the municipal law common to several states,1 and partly to the analogy between the contract rights of alien enemies and their general property rights which have obtained an inchoate recognition at international law. The practice of states down to 1914 showed on the one hand an attitude, as exemplified in the decisions of the British and American courts, which regarded all commercial intercourse between enemy subjects as illegal by the very fact of war between their respective states. In the case of the Hoop the British court condemned a cargo which a neutral vessel had shipped at Rotterdam. for the account of certain British merchants, announcing that there was "a general rule of maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted." In the case of the Rapid the United States Supreme Court condemned a cargo which an American citizen had purchased before the outbreak of war and had deposited upon an island near the boundary line of the United States, and which he attempted to bring home after the outbreak of war. On the other hand the states of continental Europe had generally followed the practice of not regarding trading with the enemy as illegal by the mere fact of war, but only in consequence of an express prohibition of the government.

The difference between the attitude of the British and American courts and that of continental courts in respect to trade with the enemy appears further in the test by which enemy character was determined. The rule of English and American law was that the legal status of a particular trader was determined by his residence or domicile, not by his nationality. Consequently trade was forbidden with neutral citizens and even with persons owing political allegiance to a state if they were resident within enemy territory; and at the same time trade was permitted with persons of enemy nationality resident within neutral territory. On the other hand continental governments adopted the test of nationality as determining enemy character, so that trade was prohibited with persons owing allegiance to the enemy even when resident in neutral countries. Both Anglo-American and continental practice

As Oppenheim points out, International Law, II, § 101. 21 C. Rob., 196 (1799). Scott, Cases, 622; Evans, 459.

38 Cranch, 155 (1814). Scott, Cases, 631.

For the numerous cases that have arisen in connection with domicile as a test of enemy character, see Scott, Cases, 659-693.

XXVII

between

citizens

has excepted from the term "enemy" persons of enemy nationality CHAP. residing within the territory of the respective belligerent states.1 Numerous difficult questions have arisen in connection with Contracts the application of the principle of non-intercourse to the various enemy relations of commercial life. What contracts between enemy citizens must be held to be "trading with the enemy"? In general, contracts entered into during the war have been declared by British and American courts to be ipso facto void, unless entered into under a special license,2 or those belonging to the class known as commercia belli, such as the ransom bills of earlier centuries and bills of exchange drawn by prisoners. Contracts entered into before the war are either dissolved, when they are executory and time is material and of the essence of the contract, or else merely suspended in their operation until the close of the war. In the case of Griswold v. Waddington it was held by the court of New York that a business partnership between an American and a British citizen was forthwith dissolved by war between the two countries, since a partnership necessarily involved commercial intercourse. Again in the case of New York Life Insurance Co. v. Stathem1 the Supreme Court of the United States held that a life insurance policy was annulled by reason of the non-payment of premiums caused by the existence of a state of war. On the other hand in the case of Kershaw v. Kelsey it was held by the Supreme Court of Massachusetts that a contract between a citizen of that state and a citizen of Mississippi for a lease of land continued in force, and that unpaid rent might be collected at the end of the war. Further, it was held in Hanger v. Abbott that, since war only suspended debts due to an enemy, the statute of limitations of Arkansas could not be pleaded against a citizen of New Hampshire, who had been unable owing to war to bring action within the prescribed period. British decisions are to the same effect as those of the United States courts."

5

6

At the outbreak of the World War Great Britain promptly issued a proclamation (August 5) forbidding trade "with any per

1 See above, pp. 447-448.

For the conditions under which such a license might be granted, see, for example, the United States Trading with the Enemy Act, October 6, 1917, §§ 4-5.

3

16 Johnson's Rep. 438 (1819). Scott, Cases, 604; Evans, 477.

93 U. S., 24 (1876). Scott, Cases, 617.

$100 Mass., 561 (1868). Scott, Cases, 654; Evans, 463.

6 Wallace, 532 (1867). Scott, Cases, 613; Evans, 497.

For cases, see Cobbett, Cases, II, 62-91. Scott, Cases, 585-621.

Practice

during the

World War

CHAP.
XXVII

g. Obligation to give warning before commencing hostilities

son resident, carrying on business, or being in the German Empire" without permission of the Government. This was followed by the Trading with the Enemy Act of September 18, 1914, which followed in its terms the traditional policy of the country.1 On December 23, 1915, however, the British Government adopted the policy followed by France of proscribing trade with persons or corporations of enemy nationality doing business in neutral states. A black-list was drawn up enumerating the firms with which trade relations might not be maintained. This action led to a protest from the United States, under date of July 26, 1916,2 claiming that the measure was "inevitably and essentially inconsistent with the rights of the citizens of all the nations not involved in the war." However, when the United States itself became a belligerent the same policy toward enemy traders in neutral countries was adopted in the Trading with the Enemy Act of October 6, 1917, the President being empowered to extend the term "enemy" to include such persons should he deem it expedient to do so. On the part of Germany an ordinance of September 30, 1914, prohibited the making of payments in any form, by cash, bills of exchange, or the transfer of securities, to persons domiciled or resident in the British Empire. Beyond this measure of retaliation the German Government, as a matter of domestic policy, did not find it expedient to go.

It is an old and well established principle of international law that a state must not resort to forcible procedure against its opponent without giving due warning that hostilities are about to commence. A sudden attack by one state upon another, before negotiations looking to a settlement of the controversy have been undertaken and have reached the point where the redress demanded was apparently not to be granted, has been regarded from the earliest times as an act of international brigandage. Among the ancient Greeks and Romans, as apparently among other ancient peoples, the practice prevailed of announcing the commencement of hostilities by a formal declaration of war. The Romans in particular laid stress upon the necessity of a prior demand for repara

For the text see Baty and Morgan, War: Its Conduct and Legal Results, 492-498.

2 Am. White Book, IV, 85.

The merits of the American contention are discussed by Garner, op. cit., I, § 160.

4

See Garner, op. cit., I, §§ 164-167, where references are given to German judicial decisions.

'Phillipson, International Law of Ancient Greece and Rome, II, 197 ff.

XXVII

tion (rerum repetitio), following which, if redress was not granted, CHAP. war was formally declared by members of the college of fetials to whom that duty was intrusted.1 During the Middle Ages the practice of despatching heralds to announce war with due ceremony was revived, doubtless under the influence of the traditions of the Roman law. In later centuries formal diplomatic announcements were made; but by the eighteenth century, notwithstanding the assertions of publicists that a declaration of war was necessary,2 the practice of giving formal notice had fallen into disuse. War was frequently begun without notice of any kind, though in most cases under circumstances which of themselves constituted a sufficient warning. On occasion, as between Great Britain and France in 1756, formal declarations were issued some time after actual hostilities had begun. In the absence of a declaration, the date of the commencement of war, necessary to the determination of prize cases, was marked by the first hostile act.

declarations

During the second half of the nineteenth century the practice Modern of issuing declarations of war was revived, and in 1870, on the side of war of France, and again in 1877 on the side of Russia, formal notice of the commencement of hostilities was given. In 1898 the United States regarded the terms in which Spain received the ultimatum contained in the joint resolution of Congress on April 21 as equivalent to a declaration of war, and thereupon commenced hostilities without delay. The formal declaration of war, issued on April 25, dated the existence of hostilities back to April 21. A serious, if unfounded charge brought against Japan by Russia in 1904 of treachery in the attack upon the Russian fleet at Port Arthur two days before the declaration of war showed the necessity for a general international agreement upon the subject.

3

Convention

At its meeting at Ghent in 1906, the Institute of International The Hague Law adopted resolutions urging not only due warning but also a of 1907

That the formalities attending the commencement of war did not preclude arbitrary conduct on the part of Rome in respect to the judgment passed upon the grounds of war is obvious. All that can be claimed for the procedure is that it precluded a sudden and treacherous attack without prior opportunity on the part of the other state to submit to the terms presented.

Grotius held that a war to be just must be publicly decreed." De Jure Belli et Pacis (Eng. trans.), Bk. III, Chap. III, V. Vattel looked upon a declaration of war as "necessary as a last effort to end the dispute without shedding of blood, by making use of fear to bring the enemy to a sense of justice." Droit des Gens (Eng. trans.), Bk. III, § 51.

Moore, Digest, VII, 170.

For the merits of the controversy, see Hershey, International Law and Diplomacy of the Russo-Japanese War, Chap. I; Takahashi, International Law Applied to the Russo-Japanese War, Chap. I.

CHAP. XXVII

sufficient delay between the declaration and the commencement of hostilities to prevent an evasion of the rule of previous notice.1 A year later the subject was brought before the Second Hague Conference, and a rule of statutory law was adopted in the form of a Convention (III) relative to the Opening of Hostilities. This convention provides that hostilities between the contracting powers "must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war. Moreover, the existence of a state of war must be notified to neutral powers without delay, and shall not take effect in regard to them until so notified, unless it be clearly shown that they were in fact aware of the existence of war.s

992

The effect of the provision of the Hague convention is, for the powers that have ratified it, to fix an unequivocal date for the commencement of the war instead of the less certain date of the first act of hostilities. Moreover, it assures a definite statement of the grounds upon which the war is undertaken. It does not, however, preclude the possibility of a surprise attack in case the declaration is immediately followed by hostilities. Nor does the sending of an ultimatum with a conditional declaration of war guard against a surprise attack when, as in the case of the AustroHungarian forty-eight-hour ultimatum to Serbia in 1914, negotiations have not been in progress and the state against which the ultimatum is directed is not aware that a crisis is at hand. It would seem, therefore, that the Hague convention accomplished little in respect to the fundamental problem with which the nations were confronted, and that such legal protection as exists against surprise and treachery is to be found in the old customary rule.1

In the case of civil war no declaration is needed on the part of the de jure government against the de facto rebel or insurgent government, the latter having no rights at international law against the former. If, however, the de jure government undertakes to restrict the commerce of neutral states with the rebels, it thereupon marks the commencement of legal war in so far as neutral states are concerned, and cannot subsequently complain if neutral states regard the rebels or insurgents as de facto belligerents. Thus 1 Resolutions, 163-164.

For the practice of states at the beginning of the World War, see Phillipson, International Law and the Great War, Chap. III.