Recall of born sub natural jects. that they may take their share of duty indefending their 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, 2310-23678. 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. 66 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 10. The same course is pursued with respect to privateers at sea. 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 by 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 Justinian", 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." 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 wrong 14. Bynkershoek, whilst admitting I Droit des Gens. L. III. § 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 aliter convenerit, est his qui non 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 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 withdrawn 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 Ibid. § iv. 3. Enemy. property territory of a bellige rent. 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 should suffer any damage or injury in the meanwhile 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, FI. 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. |