*

to the case of an action; and it is true, a court of law would not take notice of the objection without a plea. It must appear upon the record. **The policy avoiding contracts with an enemy is sound and wise; but when the contract was originally good, and the remedy is only suspended, the proposition, that therefore the fund should be lost, is very different.

Let the claim be entered; and the dividend reserved."

The seizure of enemy property by the United States as prize of war on land, jure belli, is not authorized by the law of nations, and can be upheld only by an act of Congress.

Moore's Digest, vol. 7, p. 289, citing U. S. v. Seventeen hundred and fifty-six Shares of Capital Stock, 5 Blatchf. 231.

Hanger v. Abbott, 6 Wallace, 532.-The Court said: "In former times the right to confiscate debts was admitted as an acknowledged doctrine of the law of nations, and in strictness it may still be said to exist, but it may well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern times."

United States v. Russell, 13 Wall. 623.-In this case it was held that when private property is impressed into public use during an emergency, such as war, a contract is implied on the part of the government to make full compensation to the owner.

The Johanna Emilie, Spink's Prize Cases, 54.-The Court said: "If the property was on land, according to the American law, it was also seizable, and certainly during the American war there were not wanting instances in which such property was seized and condemned by law-not by the authority of this court but of another. This rigor was afterwards relaxed. I believe no such instance has occurred from the time of the American war to the present day-no instance in which property inland was subject to search or seizure but no doubt it would be competent to the authority of the Crown if it thought fit."

But the courts of law have not been unanimous in their judgments on the subject. The confiscating law of North Carolina and the sequestrating law of Virginia were held in 1796, by the Supreme Court of the United States, to have been within the rightful powers of those states, but to have been annulled by the stipulation in the treaty of peace of 1783, that creditors on either side should meet with no lawful impediment to the recovery of the full value of their bona fide debts.1

1 Hamilton v. Eaton, 2 Martin's North Carolina Reports 83, Scott 481; Ware v. Hylton, 3 Dall. 199. Scott 485.

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On the other hand the court of King's Bench in 1817, under the guidance of Lord Ellenborough, exacted payment over again from a Danish debtor to his British creditor of a debt which he had paid to the Danish government under its ordinance of 1807, describing the latter as a measure "not conformable to the usage of nations, and `which therefore they [the parties] could not expect, nor are they or we bound to regard." In appreciating this judgment it must be remembered that, since the date of the American laws, a quarter of a century filled with numerous European wars had put the court on firmer ground for declaring the usage of nations in the matter. In the mean time the Supreme Court of the United States, under the guidance of Chief Justice Marshall, had held that the outbreak of war with Great Britain in 1812 did not of itself vest in the United States government the property in timber on land belonging to British owners, although it would have been competent to Congress to enact its confiscation. Lastly Dr. Lushington in 1854, after stating that during the American war, but not since, there were instances in which enemy property on land was seized and condemned, not by the court of admiralty but by those of common law, added that no doubt the search for or seizure of such property "would be competent to the authority of the crown if it thought fit."" My own conclusion is that the time is now fully ripe when a British court should not lag behind the position taken by governments, but should boldly follow Lord Ellenborough.*

Westlake, pp. 47, 48.

1 Wolff v. Oxholm, 6 M and S. 92, Scott 496.

2 Brown v. United States, 8 Cranch 110, Scott 486. In the Johanna Emilie, Spinks 14, Scott 498.

C. J., in Antoine v. Morshead, below, p. 51.

And see what was said by Gibbs,

If the matter came before a British court on a seizure by the crown, since the crown cannot take property within the realm from its owner by an act of state not grounded in law, the question would be whether the existence of a state of war amounted to a license to the crown to seize and appropriate, or, which is the same thing, had already devested the enemy owner of the property, subject to the condition that only the crown could take advantage of such devesting. The question of international law would therefore arise as well on a British attempt to confiscate as on one by the enemy government, and the opinions of Lord Ellenborough and Dr. Lushington would conflict on it. With regard to the case before Chief Justice Marshall, he evidently considered that under the constitution congress held the position in the matter which in England is held by the crown, and consequently that the United States being a party to the suit through the act of some official was not conclusive as to the line taken by his government, although congress had by international law a license to direct seizure and appropriation.

WHAT IS ENEMY TERRITORY.

1

A distinction must be made between an occupation with the ultimate object of conquest and that which is a mere temporary operation of war. The mere fact that the enemy is in possession of a certain place will not make it hostile or its inhabitants enemies. The distinction, which is apparently not recognized by Hall, 1 was established in the case of the Gerasimo, a Moldo-Wallachian ship captured by an English cruiser in 1854. The captor had taken no steps. to obtain an adjudication of the prize when in 1855 the proprietors sued for its restitution. On behalf of the defendants it was pleaded that Moldavia, where the proprietors were domiciled, was, at the moment the Gerasimo set out to sea, occupied by the Russian forces, and that this was sufficient to fix them with the character of enemies. The Privy Council, reversing the Judgment of the Court of Admiralty, ruled that, taking into account the character, duration, and results of the Russian occupation of Moldavia, it was impossible to hold that Moldavia had ever become incorporated in the Russian Empire or that its inhabitants had ever become the subjects of Russia and the enemies of Great Britain. The sole result of the occupation was a temporary suspension of the suzerainty of the Porte and this could in no way alter the national character of the territory. Russia had disavowed all intentions of conquest and continued to recognize the Moldo-Wallachian flag.

Where military occupation has been made with a view to annexation, the inhabitants of the territory are considered enemies and their property at sea is liable to condemnation. Thus in Bentzen v. Boyle, Marshall, C. J., said that:

"Although acquisitions made during war are not considered as permanent until confirmed by a treaty, yet to every commercial and belligerent purpose, they are considered as a part of the domain of the conquerer, so long as he retains the possession and government of them.3

There seems to be little doubt that in the converse case, i. e., where a belligerent is in military occupation of a part of the enemy's territory, persons domiciled therein will be considered friendly and their property at sea exempted from condemnation. Such a case has not yet come before the courts. Hall seems to be mistaken in saying that Lord Stowell ruled in a contrary sense in the Dankbaar Afrikaan, for that decision went on entirely different grounds. This was a vessel belonging to merchants domiciled in the Cape of Good

1 Hall, p. 508.

211 Moore, P. C. 115.

39 Cranch, 191.

Hall, p. 509.

51 C. Rob., 107.

Hope which had started on its voyage before, but was captured after, the British conquest of the Cape. It was condemned on the sole ground that as it had sailed a Dutch ship its character could not be altered in transitu. The rule that disregards transfers of ownership in transitu was justified by Lord Stowell by the necessity of checking fraud. The extension of the doctrine to an involuntary change of character where fraud was out of the question was unjustifiable.

Latifi, pp. 77-79.

British and American decisions.

From this decision [The "Gerasimo," 1857; 11 Moore, P. C. 88]. as well as from other authorities referred to in the judgment, the view of the English Courts appears to be (1) That a temporary occupation of friendly or British territory by an enemy will not impart an enemy character to the territory or its inhabitants, so as to render the property of the latter liable to maritime capture or to expose them to those civil and commercial disabilities that attach to the enemy character. (2) That, conversely, a temporary occupation of hostile territory by friendly forces will not remove its enemy character for these purposes, or relieve its inhabitants from their consequent disabilities. Nor, despite some contrary authority, does it appear that an occupation of enemy territory by British forces would have any other effect. Nevertheless, so far as relates to carriage of contraband and trading with the enemy, it would seem that the fact of an enemy port for which the goods in question were destined having been meanwhile occupied by British forces will have the effect of avoiding the offence; for the reason that in either case it is essential to guilt that the goods should be taken whilst on a destination for the enemy's use. And the same rule would probably be applied in cases of blockade. But where territory has been conquered and definitely appropriated, then both the soil and its inhabitants will be deemed, for all purposes, to acquire the national character of the conquering or annexing State.

In so far as these rules imply that the permanent national character of a place and its inhabitants cannot be altered by military occupation, or by anything short of definitive conquest or cession, they are quite in accord with established principles, and are equally recognized by the courts of other countries. But in so far as they fail to recognize that even a temporary occupation and control of home or friendly territory by an enemy will warrant its being treated as hostile for commercial as well as belligerent purposes, they do not appear to be in keeping with the practical exigencies of war. Nor are they in accord with the American decisions on this subject. The exigencies of war require that all territory which is under the actual

control of the enemy should be subjected to the same restrictions ast regards trade as enemy territory proper, and with the same consequences as regards individuals engaging in such trade; not because the latter have become personally hostile, but because by their trade they contribute to the strength and resources of the enemy. Hence the American Courts, whose decisions on this subject are cited with approval in the English text-books, whilst fully recognizing that acquisitions made during the war are not to be considered as permanent unless confirmed by treaty, yet adopt the view that when either home or friendly territory has passed into the occupation and control of the enemy, it must be treated as enemy territory, in the technical sense of the laws of war, for commercial as well as for belligerent purposes. So, in Bentzen v. Boyle (9 Cranch, 191), it was held by the United States Supreme Court that the Island of Santa Cruz, which belonged to Denmark but had during war between that country and Great Britain been occupied by the latter, must be regarded as British and hence as enemy territory for all the purposes of the war then proceeding between Great Britain and the United States; and that the produce of estates owned there, even by a person resident in a neutral country, must, if still remaining in the hands of the owners of the soil, be treated as enemy property and as liable to capture on the sea by the United States. If an enemy occupation of national or friendly territory confers a hostile character, it would seem to follow that a national or friendly occupation of enemy territory must free it from its enemy character. Nevertheless it was held in the case of The Circassian (2 Wall. 135) that the capture and occupation by the United States forces of the city and port of New Orleans, which they had previously held under blockade, did not have the effect of suspending its enemy character or of terminating the blockade; and hence that a British vessel which had entered the port after the occupation was still liable to condemnation. This decision, however, afterwards became the subject of a claim before the British and American Claims Commission, which made awards in favour of the claimants to the extent of $225,000.

Cobbett, pt. II, pp. 32-34.

Enemy Territory.-The question of what constitutes enemy territory is important, first, as determining the range of military and naval operations, and the legality of hostile captures, in so far at least as these are forbidden within neutral territory and waters. For this purpose enemy territory will include (1) territory owned by the enemy State, including all territorial waters and attendant areas, as ascertained by the principles and methods previously referred to; (2) territory leased or held in usufruct by the enemy State, or in