CHAPTER III. COMMENCEMENT OF WAR. Effect of War upon individuals - Natural born and adopted citizens-Inhibition of intercourse with the enemy-Recall of natural born subjects-Commission to carry on hostilitiesEnemy-subjects within the territory of a belligerent-Treaties of Commerce-Enemy-property within the territory of a belligerent— Milder practice in modern times-Obligation of good faithAncient practice of Provisional Embargo-Enemy-subjects resident in the territory of a belligent-Enemy-subjects in transitu-Detention of British subjects in France by the First Consul in 1803Modern practice not to detain enemy-subjects-Debts due to enemysubjects-Opinion of Mr. Justice Story, Mr. Chancellor Kent, Vattel, and Bynkershoek-Judgment of Lord Ellenborough, in Wolff v. Oxholm-Wheaton-Suspension of Commercial Contracts— Debts due to an Enemy-Sovereign-Conduct of Prussia in regard to the Silesian Loan-Conduct of Great Britain in regard to the Russian-Dutch Loan-Embargo of enemy-property afloat within the territory of a belligerent-Conduct of the Allied Powers at the commencement of the war against Russia in 1854-Russian reciprocity-Immovable property of enemy-subjects within the territory of a belligerent. War upon § 42. A SOLEMN Declaration of War (diffidatio) Effect of purported to be a renunciation on the part of the individuals. Sovereign, who declared war, of all international obligations towards the Sovereign against whom war was declared, so that no peaceful relations of any kind could thenceforth be entertained between them, except under express convention. The existence of mutual hostilities of such a nature, as to constitute de facto a State of War between two Sovereign Powers, is attended with analogous consequences in suspending all peaceful intercourse between the political communities, over which they are Sovereigns, and in constituting all the individual members of the one Nation enemies of the individual members of the other Nation. As Private War is inconsistent with Public Peace, so Private Peace cannot coexist with Public War. "In former times, and especially in small states," writes Vattel, "whenever war was declared, every man became a soldier; the entire people took up arms, and engaged in the war; after a short time a selection came to be made, and armies were formed of picked men, and the rest of the people continued to pursue their usual avocations. At present the use of regular troops is everywhere established, but principally in the great States. The Public Power raises soldiers, distributes them in different corps under the authority of chiefs and other officers, and keeps them on foot as long as it thinks necessary; as every citizen or subject is bound to serve the State, the Sovereign has a right to enroll those whom he pleases in case of necessity1." Accordingly as every member of a political community is under an equal obligation to serve and defend the State, as far as he is capable, no individual is exempt by the Law of Nations from taking up arms in its defence. It is, however, optional with every community to organise itself in the manner, which it thinks most convenient for its own defence in time of war. Hence the obligation of each individual member of a political community to take an active part in any war, in which the community is engaged, will depend upon the Constitutional Law of the community. Amongst some 1 Vattel, Droit des Gens, L. II. c. 2. § 9. nations there is a legal obligation upon every citizen under a certain age to serve the State in arms, and lot decides upon whom the actual burden of military duty shall devolve. Amongst other Nations the profession of arms is voluntary, like the profession of letters, with this difference however, that the Nation undertakes to pay those of its citizens who choose to enroll themselves in its standing army, as it is just that those who do not serve should pay their defenders. There have been on the other hand instances where Nations have been content to exempt their own citizens from active military service, and to entrust their defence to a regular army of foreign origin serving them for pay. Such were the Swiss regiments in the service of Spain and of Naples, and such were the Irish regiments in the service of the Emperor, and the Scotch regiments in the service of Sweden and of France. But in all such cases, if a soldier of foreign origin takes service in the standing army of a Nation, he becomes for the time of his service a member de facto of the Nation for all belligerent purposes. No person is entitled to object to his so taking service, but the Sovereign Prince to whom he owes similar service by virtue of his allegiance, as a natural born subject; and if he has entered into the military service of a foreign Power without the consent of his Sovereign, he will have offended indeed against the laws of his native country, and may disentitle himself to enjoy the privileges of a citizen, if he should return to that country. But by the Law of Nations every man is free to attach himself to any political community which may be disposed to admit him to membership, if he finds it to be for his advantage. He may make its cause his own, and espouse its quarrels ; 2 Vattel, L. III. c. 2. § 13. 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 citizens3." 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 3 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 persons are de facto subjects of the Enemy-Sovereign, being resident within his territory, and are adhering to the Enemy, so long as they remain within his territory. If they, however, quit the Enemy's territory with the intention of abandoning it, and resuming a permanent residence in the country of their origin, they divest themselves of the enemy-character at once, upon so quitting the Enemy's territory. It is otherwise, however, with the natural born subjects of an Enemy-Sovereign; they may be treated as enemies by the other belligerent wherever he may find them, except they should be within neutral territory, in which case it is the privilege of the neutral Sovereign to prohibit all violence being offered to them. The neutral Sovereign has a right to insist that all persons within his dominions, who may have differences to settle, shall settle them in his courts by a judicial proceeding and not by violence. Thus Demophoon is represented as saying to the ambassador of Eurysthenes, "If you can charge these guests with an offence, You shall have justice, but not drag them hence 5." 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. |