the Right of a belligerent Power to seize and detain enemy-subjects, who may be within his territory at the commencement of war, speaks of that Right as being rarely exercised in his days 15. Captura autem quamvis apud Romanos etiam exercita sit adversus eos, qui tempore belli exoriuntis in alterius imperio inveniebantur, hodie, quamvis exerceri possit, raro tamen exercetur." Bynkershoek considers that the exhibition of forbearance in regard to enemy-subjects, under such circumstances, is a concession to humanity, unless it should have been a matter of treaty-stipulation; and that wherever there are treaty-stipulations, whereby an interval of time is secured to the Subjects of a belligerent Power to enable them to withdraw themselves and their property in safety out of the Enemy's territory, they will rightly be made prisoners of war, and their property confiscated, if they should not have with- . drawn themselves from the Enemy's territory within the time specified by treaty. Commerce. § 47. There are writers of eminence on the other Treaties of hand, who have maintained that the series of treaties, which stipulate for the allowance of a reasonable time after the outbreak of war for the Subjects of a belligerent Power to withdraw their persons and property out of the territory of an Enemy, are but affirmations of Common Right or Public European Law. Thus Emérigon in commenting upon various modern treaties of commerce, and amongst others upon the treaty concluded between France and the United States of America (5 Feb. 1778), whereby it was provided that in case of war breaking out between the two Nations, an non iniquum videbatur; bello autem composito nihil obtendi poterat, quominus demitterentur. Itaque consensum in hoc est, ut tales in pace semper libertatem obtinerent, ut confessione par- c. 3. Publici, L. I. interval of six months after the Declaration of War should be allowed to the merchants of either Nation, in the towns or cities which they inhabit, to collect within the and transport their merchandise; and that if they territory of should suffer any damage or injury in the meanwhile Enemyproperty a bellige rent. at the hand of the citizens or subjects of either of the contracting parties, they should have full and entire satisfaction 16" observes that such treaties are nothing more than declaratory of the Common Law. In effect," he says, "He, who relying on the public faith, comes amongst us to trade, or for other lawful cause, is not to be treated as an enemy, simply because war breaks out between his Nation and our own." Vattel to the same effect says, "The Sovereign declaring war can neither detain the persons nor the property of those subjects of the Enemy, who are within his dominions at the time of the declaration. They come into his country under the public faith. By permitting them to enter and reside in his dominions, he tacitly promised them full liberty and security for their return. He is therefore bound to allow them a reasonable time for withdrawing with their effects: and if they stay beyond the term prescribed, he has a right to treat them as enemies-as unarmed enemies, however. But if they are detained by an insurmountable impediment, or by sickness, he must necessarily, and for the same reasons, grant them a sufficient extension of the term. At present, so far from being wanting in this duty, Sovereigns carry their attention to humanity still further; so that foreigners, who are subjects of the State against which war is declared, are very 16 Martens Recueil, II. p. 592. Afin de promouvoir d'autant mieux le commerce des deux côtés, il est convenu que, dans le cas où la guerre surviendrait entre les deux nations sus-dites, il sera accordé six mois après la déclaration de guerre aux merchands dans les villes et cités qu'ils habitent, pour rassembler et transporter leurs merchandises. Art. XX. frequently allowed full time for the settlement of their affairs. This practice is observed more especially with regard to merchants, and care is moreover taken to provide for their case in commercial treaties. The king of England has done more than this. In his last Declaration of War against France, he ordered that all Frenchmen, who were in his dominions, might remain there in perfect security in regard both to their persons and their property, provided they demeaned themselves dutifully"." Vattel's observation is applicable also to the next following formal Declaration of War made by England (2 Jan. 1762), against Spain; the concluding paragraph of which was to this effect: "And whereas there may be remaining in our kingdom divers of the subjects of the king of Spain, we do hereby declare our Royal intention to be that all the Spanish subjects, who shall demean themselves dutifully towards us, shall be safe in their persons and effects 18." § 48. If the observations of Emérigon and Vattel are limited to the natural born subjects of an Enemy, who have established themselves for the purposes of trade in the country of a belligerent Power before the breaking out of war, much may be said in favour of their view, that such parties cannot be at once treated as enemies by the belligerent Power with due regard Obligation of good to good faith. They are clearly distinguishable from natural born subjects of the Enemy, who are within the jurisdiction of the belligerent Power at the commencement of a war casually as visitors for the as visitors for the purpose of 17 Droit des Gens, L. III. c. 4. § 63. Vattel published his work in 1758, he is therefore referring to the English Declaration of War against France of 17 May 1756. 18 This Declaration of War against Spain is set forth at faith. trade or pleasure. A foreigner who has established a house of trade in the country of a belligerent Power, has given security as it were for his good behaviour, and is contributing by his industry and capital to promote the welfare of the country which he inhabits, equally with its natural born citizens. The Government of the country, on the other hand, having permitted him to establish himself under its jurisdiction by the side of its natural born subjects, must be taken to have accorded its protection to him, as an adopted subject, equally as to its native subjects. It is obvious therefore that the personal relations of such an individual to the Sovereign of the country in which he has established himself, are substantially different from the personal relations of foreigners in transitu : and that there is a tacit contract between him and the Sovereign, that as long as he obeys his laws, the latter will accord to him his protection; but his relations of strict Right (stricti juris) towards the Sovereign of the country in which he has established himself, will be determined by the Territorial Law, of which he was bound to inform himself, when he first established himself in the country. The Territorial Law of every Nation, for instance, prescribes for the most part certain conditions, under which a foreigner may become a naturalised subject or citizen, and as such have within its territory all the rights and privileges of a natural born subject in time of war, equally as in time of peace. But if a foreigner, resident within the territory of any particular Nation, should not have been naturalised in conformity with the requirements of its Territorial Law, his personal status will continue to be that of an alien, and if war should arise between his native country and the country in which he has established himself, his personal relation with the latter country will be that of an alien enemy. An indepen dent Power under such circumstances will be justified in case of war, in the exercise of its strict Right, to order him, with all other alien enemies, to quit its dominions, although he may have established himself therein bona fide for purposes of trade, and have acquired a commercial domicile under the Law of Nations. But in exercising his strict Right, a belligerent Sovereign must observe good faith towards such persons, and allow them a reasonable interval of time to collect and transport their goods and effects. It would be inconsistent altogether with good faith to treat them in a summary manner as enemies, unless the public safety imperatively required it,-as, for instance, if they should be in league with the Enemy, and be preparing to co-operate with an invading army. In such a case there would be bad faith on their part, and the Sovereign of the country might at once exercise his extreme Right, as a belligerent, against them with perfect good faith on his part. § 49. It may be affirmed, that there is now a long established Practice amongst the Christian Powers of Europe, from which it would be an immoral act for any of them to depart without notice, to refrain from seizing the effects of alien merchants, who are resident for purposes of trade within their territory at the time when war breaks out. It was one of the provisions of the Great Charter of King John (15 June 1215), that "all merchants (unless publicly prohibited beforehand) might have safe conduct to depart from, to come into, to tarry in and go through England for the exercise of merchandise, without any unreasonable impost, except in time of war; and that upon the breaking out of war with their Nation they should be attached (if in England) without harm of body or goods, until the King or his great Justiciary be informed how English merchants are treated in |