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Mitigation in cases of great hardship.
of confiscation, and this without any exception, even upon the fact being shown that the goods were purchased before the war.
In cases which present circumstances of extreme hardship, courts of admiralty, in the exercise of prize jurisdiction, have manifested a willingness to soften the asperity of the rule, in its application.
In the case of "The Dree Gebroeders," Lord Stowell said: "Pretences of withdrawing funds are at all times to be watched with considerable jealousy; but when the transaction appears to have been conducted bona fide with that view, and to be directed only to the removal of property which the accidents of war may have lodged in the belligerent's country, cases of this kind are entitled to be treated with some indulgence."
In another case in which an indulgence was allowed by the court for the withdrawal of property from the enemy's country, Lord Stowell declared that his decree must be considered as in no degree relaxing the necessity of obtaining a license.2
In another case decided by Lord Stowell, it would seem that the rigor of the rule was made to bend to the peculiar circumstances. Upon an examination of the circumstances, it will be found that although the letter of the rule may be relaxed, its spirit is not contravened.
The property in question, in that case, consisted of wines, a portion of which had been purchased in Spain, for the supply of the British fleet, before hostilites with that country. After the breaking
1 The Dree Gebroeders, 4 Rob., 234.
The Juffrow Catherina, 5 Rob., 141.
The Madonna delle Grazie, 14 Rob., 195.
out of the war, a secret deposit was made of the wines in Spain, and from thence they were removed to Leghorn; previous to which, however, some newly purchased wines were added for mixing, in order to color the stock which had become too pale to be salable. The mixture of the new wine, purchased after the commencement of hostilities, was considered by the learned court so indispensably neces sary to the disposal of the old cargo, as not to af fect the legality of the transaction.
The court then proceeds to excuse the want of a license in that case, as follows:
"It is said that Mr. Gregory, the claimant in that case, might have obtained a license. I certainly do not mean to weaken the obligation to obtain licenses for every sort of communication with the enemy's country, in all cases where the measure is practicable; but I think I see great difficulties that might have occurred in applying for a license, or using it, in the present case. How could Mr. Gregory describe his wines as to the place from whence they were to be exported? They were deposited secret ly, and could only be exported by particular oppor tunities. On the other hand, can I entertain a doubt that government would have been very de sirous to protect him in the recovery of his prop erty, purchased under a contract with them? Or, on the ground of public utility, is it too much to hold out this encouragement to persons engaged in contracts of this sort, that they shall obtain every facility in the disposing of such stores?
It would be considerable discouragement to persons in such situations, at a distance from home, and employed in the public service, if they were to
know, that in case of hostilities intervening, they would be left to get off their stores as well as they could, with a danger of capture on every side. The circumstances of this case may be taken as virtually amounting to a license, inasmuch as if a license had been applied for, it must have been granted."
Commerce carried on without license, by a citizen resident in an enemy's country, even though he be a representative there of his own country, and even though such commerce be manifestly beneficial to his own country, is illegal, and the property which is the subject of it may become lawful prize.
Under this chapter, which treats of the rights and obligations and liabilities of citizens of belligerent nations and their allies, the effect which a condition of war, of itself, produces upon the person, property and rights of the citizen may be briefly considand rights of ered.
of war on per
The property of a nation consists of the property of the aggregation of individuals composing that nation, and therefore, a claim to indemnification for injuries sustained from a foreign state (to enforce which, is the ostensible cause of all international wars), may be satisfied by a seizure of the property of any individual members of that state. Upon this principle, the practice of nations in time of war has always proceeded. Although, as Grotius says, there is no natural responsibility of one person for the offences of another, yet by the law of nations, the "jure gentium voluntario," the whole property of the individual members of a state is responsi
Ex parte Baglehole, 18 Ves. Jr., 528; 1 Rose, 271.
ble for the debts or obligations of the state or sovereign.1
Upon this point Vattel is more emphatic. He says, that the property of individuals in the aggre gate, is to be considered, with respect to other states, as the property of the nation itself. A nation, being regarded by foreign nations as constituting only one whole, one single person, all their wealth together can only be considered as the wealth of the same person.
If one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation, until the debt is paid.2
From this principle result many important rights General right and liabilities, such as captures, reprisals, &c., by reprisals, &c. which the property of any citizen of an enemy's state is seized as indemnification for the injuries sustained by the state or the citizens. These will be more fully considered hereafter.
Resulting from this principle, also, it is well es tablished, that the persons and the property of alien enemies, found within the state, when a war breaks out, may be rightfully seized by the govern ment, the individuals as prisoners of war, and the property to indemnify the nation. The modern practice of nations has greatly mitigated the severity of the rule of right, and in some instances, it has been modified by treaty; but there is no doubt of the right, and that, in the absence of express convention, it may be lawfully exercised. By Magna
1 Grotius De Jure, Lib. III., c. ii, § 2.
Vattel, Droit des Gens, Liv. II., c. vii., §§ 81, 82.
Rule in the
Charta of Great Britain, it was provided that the merchants of a foreign nation, found in Great Britain, upon the breaking out of hostilities with that nation, should be detained, until it were known how British subjects were treated by the enemy, and then to be released or detained accordingly.1
In the Middle Ages, the rule was rigidly enforced, early ages. but its relaxation commenced with the advance of civilization and the growing appreciation of the importance of commerce. As early as 1483, Louis XI. granted protection to the persons and property of the Hanse Towns, with liberty to remain for one year after the war broke out. In the sixteenth century it became a common stipulation in commercial treaties between nations, that the citizens or subjects of either should be allowed a specified time, varying from three months to two years, from the commencement of a war, during which they might remain unmolested for the settlement of their affairs, and retire peaceably, at any time within the Treaty stipula- period stipulated. By the treaty of 1786 between Great Britain and France, it is provided that the subjects of either power shall be allowed to continue their residence during war, in the dominions of the other, as long as they comport themselves to the satisfaction of the government. An article of a similar character was inserted in the treaty of 1795 between the United States and Great Britain. By this it is provided, that the citizens of either power may remain unmolested during war in the
'Blackstone's Law Tracts, XVII.-XXXIII., LI.
? Dumont, III., ii., 123.
* De Marten's Recueil, IV., 156.