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instances during the present European War, can hardly give rise to individual pecuniary claims in law. The alien enemy's individual grievances are settled by the treaty of peace, and if his country should happen to lose in the war, he is without redress. If his country should be the conqueror, indemnities may be demanded from the defeated nation, but his pecuniary remedy then depends on the bounty of his own state. In either case, he apparently has no legally protected rights, so that as between nations and alien enemies, the rules of war have only a moral and not a legal sanction. If the transgressor of the rules should be victor in the conflict, no legal means exists for compelling him to accord redress to injured alien enemies. While he may be held more accountable to neutral aliens, either as victor or vanquished, for certain transgressions of the rules of war, there are many respects in which neutral aliens domiciled in enemy territory share the burdens of war equally with alien enemies.

Neutral aliens domiciled in an enemy state, with their property there situated, are exposed to the consequences of actual belligerent operations to the same extent as subjects of the enemy.15 This rule applies not only to aliens who permanently reside in a country, but to those who come with knowledge of the existence of the war, and particularly to those who came before the war and continued to reside for a period longer than necessary for convenient departure. Both with respect to his property and his capacity to sue such an alien is deemed an enemy.16 Foreign offices and municipal and international courts have frequently laid down the rule that neutral property permanently situated in enemy territory, or property of neutrals who voluntarily enter or continue to reside in belligerent territory assumes the risks of injury incident to war.17

15 Hall, 740; Bentwich, 29. The rule that war makes subjects of one belligerent the enemies of the government and subjects of the other is admitted. It applies equally to civil and international war. See also U. S. v. Cooke {The Venice), 2 Wall. 258, 274; Mrs. Alexander's Cotton, 2 Wall. 419; Jecker v. Montgomery, 18 How. 110; White v. Burnley, 20 How. 235, 249.

"Whiting's War Powers under the Constitution, 43rd ed., Boston, 1871, p. 341. Society v. Wheeler, 2 Gallison, 105. The rule that aliens entering or continuing to reside in enemy territory may be treated as enemies is found in Grotius, III, 4, sees. 6, 7.

17 Palmerston's opinion in Greytown, Copenhagen and Uleaborg bombardments. Hansard's Debates, 3rd series, V. 146, pp. 37, 49; Granville to Lord Lyons, Jan. 11, In strict law, even the property of loyal citizens situated in enemy territory is subject to the casualties of war as enemy property.18 The particular liabilities to which such property is thus ordinarily exposed will be examined presently. It is here merely to be noted that on land, the fate of property located in belligerent territory depends not on the nationality or loyalty of the owner, but on the location of the property." The only important qualification of this rule relates to neutral property temporarily in the belligerent country. If this is used or destroyed for recognized belligerent reasons, the owner is entitled to compensation, which is not the case with property permanently so situated. The right to use such neutral property, subject to payment of compensation, is known as the right of angary quite analogous to the right of eminent domain.20

1871 and Granville to Sackville West, March 1, 1871, Hale's Rep., Appendix, For. Rel. 1873, V. 3, 368-370, 65 St. Pap. 458.

Mr. Cass, Sec'y of State, to Mr. Burns, April 26, 1858, Moore's Dig. VI, 885; Mr. Seward to Mr. Wydenbruck, Nov. 16, 1885, ibid. 885; Mr. Fish, Sec'y of State, to Mr. Washburn, April 28, 1871, For. Rel. 1871, 335; Mr. Fish to Mr. Thornton, May 16, 1873, Moore's Dig. VI, 890; Mr. Fish to Mr. Gibson, Dec. 30, 1875, ibid. 891; Mr. Bayard to Mr. O'Connor, Oct. 29, 1885, ibid. 891; Whiting's War Powers, 352; 12 Op. Atty. Gen. 21; 22 Op. Atty. Gen. 315. See also Wharton's Dig. Ill, sees. 352, 353.

Gallego, Mesa, et al. v. U. S., 43 Ct. CI. 444; Herrera v. U. S., 222 U. S. 558.

Cooke (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 2659, 2661; Haggerty, ibid. 2665; Thompson, ibid. 2669; Castel (U. S.) ». Venezuela, Dec. 5,1885, ibid. 3710; Foster (U. S.) v. Mexico, July 4, 1868, ibid. 3349; Costa (U. S.) v. Mexico, ibid. 3724; Brook (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3738. (Rule admitted, but award here made for property taken for military use, because loyal citizens had been granted compensation in similar cases. 16 Stat. L. 524.) Same rule in Henderson (Gt. Brit.) v. U. S., ibid. 3727, Frazer dissenting in both cases, Hale's Rep. 43, 44; Laurent (Gt. Brit.) v. U. S., Feb. 8, 1853, ibid. 2671; Uhde, ibid., 2691; Bacigalupi (U. S.) v. Chile, May 24, 1897, Report, 1901, p. 151; Volkmar (TJ. S.) v. Venezuela, Feb. 17, 1903, Ralston, 258, 259; Upton (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 72; Orr and Laubenheimer (U. S.) v. Nicaragua, For. Rel. 1900, 826; Tongue (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3675.

u Jaragua Iron Co. v. U. S., 212 U. S. 297, 306; Page v. U. S., 11 Wall. 268; Prize Cases, 2 Black, 635; The William, Bagaley, 5 Wall. 377; Green v. U. S., 10 Ct. CI. 466; Gooeh v. U. S., 15 Ct. CI. 281; Brandon v. U. S., 46 Ct. CI. 559.

>• 11 Op. Atty. Gen. 405; 12 ibid. 486, 488; Lawrence's Wheaton, 565. In practice indemnities are often paid for such loyal citizen's property as may have been used or destroyed by the citizen's own State. See Southern Claims Commission, Act of March 3, 1871, 16 Stat. L. 524.

» Hall, 741; Bentwich, 27; Oppenheim, sees. 364-367.

ENEMY CHARACTER

The belligerents are entitled to exercise certain measures against enemy persons and property from which neutrals are free; but while the rule as to private property on land is comparatively simple, its location constituting the test of enemy character, private property at sea is tested by other criteria to determine whether or not it is vested with enemy character. According to the Continental practice,21 nationality is the test of enemy character, so that the subjects of the belligerents and their property bear enemy character, whereas the subjects of neutrals and their property do not. But under the Anglo-American rule, in which domicil is the test, regardless of nationality, as well as under prescribed exceptional circumstances, subjects of the enemy state do not necessarily bear enemy character, whereas neutrals may by their domicil or their acts be properly considered as enemies. Neither the Second Hague Conference nor the London Naval Conference of 1908 was able to reconcile these conflicting views concerning nationality or domicil as the controlling factors in determining the neutral or enemy character of individuals and their goods.210

Under the Anglo-American rule, the political character of private property at sea depends on the commercial domicil of its owner.22 This differs from civil domicil, inasmuch as it does not require long-continued residence with an intention not to return, but only such a residence for the purposes of trading as makes a person's trade or business "contribute to or form part of the resources of such country, and renders it therefore reasonable that his hostile, friendly or neutral character should be determined by reference to the character of such country." 23 Such commercial domicil may differ from the actual civil domicil of the owner. For example, in Anglo-American law, his house of trade (commercial

11 Fiore, III, sec. 1432 et seq.; Calvo, IV, sec. 1932 et seq.; Bonfils, sec. 1343 et seq.

21a The recent British Aliens Restriction (Consolidation) Order, 1914, § 31, and Trading with the Enemy Proclamation, No. 2, clauses 3 and 6 modify the general rules as to enemy character. See Schuster, E. J. Effect of War * * * on commercial transactions. 2nd ed. London, 1914, p. 3 et seq.

"Bentwich, 142; Westlake, II, 140; Oppenheim, II, sees. 88, 90; Laurent (Gt. Brit.) v. U. 8., Feb. 8, 1853, Moore's Arb. 2671; The Pizarro, 2 Wheaton, 246. Japan appears to have adhered to the principle of domicil in these matters.

a Dicey, Conflict of Laws, 737.

domicil) may be in neutral territory and the property at sea emanating from that house of trade escape belligerent capture, notwithstanding his civil domicil in enemy territory.24 The obverse rule has equal force. So an owner may have several houses of trade, some in neutral, some in enemy territory, according to which his property may be judged. The rule as to commercial domicil is applied even to friendly subjects. It may be added that all goods on enemy vessels are presumed to be enemy goods unless the contrary is proved.

The enemy character of a ship is determined by its flag, regardless of the nationality or domicil of the owner, provided she is sailing under it legitimately according to the municipal law of the State of the flag.25 However, a vessel under a neutral flag may acquire enemy character or at least forfeit its neutral protection by taking part in the hostilities, by rendering unneutral service, by carrying contraband in excess of the permitted proportions, by the use of fraudulent means to evade just capture, by breaking or attempting to break a lawfully established blockade, or by forcibly resisting visit and search.26 Individuals may also lose their neutral character by rendering unneutral service to either belligerent.27 The questions involved in the transfer of enemy vessels and goods to a neutral flag in contemplation of or during war have found a generally accepted solution in the rules formulated by the London Naval Conference of 1908.28 But the fact that a neutral individual

M Attention may be called to the peculiar rule of American prize law, according to which a partner's residence in the enemy's country will condemn his share in a house of trade established in neutral territory. The Antonia Johanna, 1 Wheat. 159.

"Oppenheim, II, sec. 89; Westlake, II, 147. A reservation might, however, be made to the effect that the municipal law conferring the right to fly the national flag must not conflict with the rules of international law as to transfer of flag in time of war.

* Westlake, II, 153; Oppenheim, II, sec. 89, sec. 406.

"See Art. 17 of Convention V of the Second Hague Conference, and Oppenheim, II, sec. 88. The Industrie (German) and The Quang-nam, condemned by Japanese prize courts in Russo-Japanese war. Takahashi, S., International Law applied to the Russo-Japanese War, New York, 1908, pp. 732-738.

B Articles 55, 56 and 60 of the Declaration of London; Oppenheim, II, sees. 91, 92. The former conflicting rules are discussed by Westlake, II, 148 et seq. See the Sophia Rickmers, 61 St. Pap. 1091. For the opinion of the State Department rendered during the present European War concerning the transfer of merchant ships during war, see Sen. Doc. 563, 63rd Cong., 2nd seas.

furnishes supplies or makes loans to either belligerent from neutral territory does not affect his neutral character.*9

WAR ON LAND

The effects of war upon private property on land may now be considered. It has already been observed that neutral and enemy property in hostile territory are in general subject to the same treatment. Where such property is seized or destroyed for strategic reasons directly incident to belligerent action, the private owners need not be compensated for their losses.30 This rule is based on military necessity, and the difficulty of its application, as will be seen presently, arises in determining whether a particular seizure or destruction was prompted by imperious military necessity or constituted a deliberate appropriation of private property for public use, although perhaps indirectly connected with belligerent purposes. It has been noted that under certain circumstances neutral property merely temporarily in hostile territory, such as ships, may only be seized on payment of compensation, under the belligerent right of angary.31

Injuries sustained by private property as a direct result of belligerent acts—battle, siege, bombardment—or incidental thereto are not the subject of indemnification. The conduct of the belligerent, however, must conform to the laws of war, both in justification and execution. Private losses thus sustained in war are considered as due to necessity and force majeure. Vattel first stated what has since been accepted as the correct grounds for the non-liability of the State for these war losses—"the public finances would soon be exhausted" and "these indemnifications would be liable to a thousand abuses." 32 Yet as an act of grace, as has been remarked, a State may, after peace, consent to compensate its subjects and even domiciled aliens for their losses, thus distributing the individual loss equitably over the whole nation. As be

29 Art. 18 (a) of Convention V. See Dept. of State circular Aug. 15, 1914, "Neutrality—contraband—seizure of ships and cargo." m Bentwich, 27.

31 Westlake, II, 119; Oppenheim, II, sees. 364, 365. Neutral cargo, even conditional contraband, not destined to enemy forces, has at times been requisitioned under payment of compensation.

"Vattel, Bk. III, ch. XV, sec. 232, p. 402.

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