Natural born and adopted citizens. If a but the act must be his own voluntary act. § 43. When a Nation is at war with another Nation, all the members of the one Nation are the enemies of the other Nation. This rule of joint association in war applies to adopted citizens, equally as to natural born citizens. "Without doubt," says Grotius, "all the subjects of the Sovereign, from whom an injury has been received, who are such for a permanent cause, are liable to the law of reprisals, whether they be natives or citizens." The same rule applies likewise to all persons who come to reside within the country of a belligerent Power with the knowledge of the existence of war, equally as to all who have come into the country before the war, and continue to reside there after the commencement of hostilities for a longer time than is necessary for their convenient departure. "Without doubt," writes Grotius, "strangers who come into an Enemy's country after a war has been begun and is known to exist, may be treated as enemies, and those, who have gone thither before the war has commenced, may by the Law of Nations be taken for enemies after a moderate De Jure B. et P. L. III. c. 2. § vii. 2. 4 De Jure B. et P. L. III. c. 4. § vi. vii. time, within which they should depart." All such per- "If you can charge these guests with an offence, repre of inter course with § 44. It is customary for the Government of a country, at the commencement of a war, to issue an edict or proclamation, whereby it notifies to its Subjects the particular line of conduct which they are to pursue in regard to the Enemy. These edicts for the Inhibition most part have reference to commerce and to personal intercourse of an amicable character, which it is usual the enemy. to inhibit except it be carried on under special licenses or cartels. It is competent also for a belligerent Sovereign, at the commencement of a war, to recall all his natural born Subjects, who may be in the service either of the Enemy or of any neutral Power, in order 5 Euripidis Heraclidæ, 251, 252. natural jects. that they may take their share of duty indefending their born sub- native country. Edicts of both kinds, termed Edicta inhibitoria and Edicta avocatoria", were issued by the Roman Emperor of the Germans in 1792 and in 17937; and a long series of Edicts of the latter kind, extending over a period of a century and a half (1548 to 1704), have been preserved in the Codex Augusteus Saxonicus Electoralis, 2310-2367. The more usual course in the present day is for a Sovereign Prince not to recall his natural born Subjects, who may be resident in an Enemy's country at the commencement of a war, but to leave them free to remain, if they please, in their adopted country, subject however to the inconvenience of being regarded and treated as enemies, so long as the war may last. § 45. When a Nation takes up arms against another Nation, it declares itself from that time an Enemy to all the individual members of the latter, and authorises them to treat it as such. If therefore regard be had to the Natural Law of Nations, it would appear that as soon as two Nations are engaged in war, all the Subjects of the one may commit hostilities against the Subjects of the other, and do them all the damage which is authorised by the practice of Nations towards Enemies. The ancient Declarations of War were couched in language of the most general character, under which every Commis. Subject of the belligerent Sovereign was commanded to attack the Enemy, courir sus aux ennemis. But hostilities. the milder practice of the Christian States of Europe has confined the duty of undertaking active hostilities against the Enemy to the commissioned officers sions to carry on 6 The "Jus avocandi cives ex alieno territorio" has been discussed by various writers, cited in Kamptz Neue Literatur des Volkerrechts. § 277. 7 Von Martens, § 269. at sea. 10 of the State, and soldiers or sailors serving under them. "The necessity of a special order to act," says Vattel", "is so thoroughly recognised, that even after a Declaration of War has been made, if the country people of themselves commit hostilities, the Enemy treats them without any regard, and causes them to be hung like so many robbers or brigands 1o. The same course is pursued with respect to privateers A commission from their Sovereign or his admiral can alone, in case they are captured, ensure them such treatment, as is shown to prisoners taken in regular warfare." We find, accordingly, that the phraseology of modern Declarations of War has been modified agreeably to a milder practice. Thus the -last formal Declaration of War on the part of Great Britain, which was issued on 2 January 1762, against Spain, ran in this form: "We will and require our Generals and Commanders of our forces, our Commissioners for executing the office of our High Admiral of Great Britain, our Lieutenants of our several countries, Governors of our forts and garrisons, and all other officers and soldiers under them sea and land, to do and execute all acts of hostility in the prosecution of this war against the king of Spain, his vassals, and subjects, and to oppose their attempts, willing and requiring all our subjects to take notice of the same, whom we henceforth strictly forbid to hold any correspondence or communication with the said king of Spain or his subjects." Vattel holds that, where the ancient form of language is retained in modern Declarations of War, Custom will control its interpretation. The general order embodied in such Declarations authorises indeed, and even obliges every Subject of 9 Droit des Gens. L. III. § 226. 10 Martens, Précis, § 271. Klüber, § 246. Enemysubject within the of a belli gerent. whatever rank, to arrest the person and property of the Enemy, when they fall into his hand; but it does not invite any Subject to undertake any offensive expedition without a commission or special order". $46. After hostilities have been once commenced, the persons of enemies are liable to detention, and territory their property to confiscation, if they are within the territory of a belligerent Power. The Roman Law was extremely harsh in this particular, for we find it to have been considered to be settled law in the time of the Emperor Justinian12, that the citizens of a country, who had gone to another country in time. of peace, became slaves, if war broke out between the two countries, and they were seized within the enemy's territory. "According to strict authority," writes Chancellor Kent, "a State has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property and detain the persons as prisoners of war 13" Grotius holds that such persons can only be detained as prisoners of war until the termination of hostilities, on the ground that it is justifiable to weaken the power of the Enemy by detaining his Subjects whilst war continues; but upon the termination of hostilities, there can be no reasonable objection to their being set free, as they cannot be conceived to have done. anything wrong1. Bynkershoek, whilst admitting 11 Droit des Gens. L. III. aliter convenerit, est his qui non § 227. Heffter, § 124. 12 Dig. XLIX. Lib. XV. § 12. Verum in pace qui pervenerunt ad alteros, si bellum subito exarsisset, eorum servi efficiuntur, apud quos jam hostes suo facto deprehenduntur. 13 Kent's Commentaries, L. I. $56. 14 In pace postliminium, nisi virtute bellica superati, sed fato suo deprehensi sunt, ut qui, cum bellum subito exarsit, apud hostes reperiuntur. L. III. c. 9. § iv. 1. At de his qui bello exorto deprehensi erant, dici idem non poterat, nam in illis nullum injuriæ consilium fingi poterat. Tamen ad minuendas hostium vires retineri eos manente bello |