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Public debt not confiscable.
904. War does not exonerate a belligerent from the obligation to pay its public debt, by whomsoever held,' nor does it suspend the payment of principal or interest, as it falls due.
| Fioré, Nouveau Droit. Intern., v. 2, p. 313. This principle, says Pradier Fodéré, (Id., note,) is now adopted by modern governments. See instances of the honorable application of this principle in Troiss, Law of Nations, pt. II., pp. 110–114. By the treaty between the United States and Hayti, Nov. 3, 1864, Art. IV., 13 U. S. Stat. at L., 711, it is provided, that neither the money, debts, shares in the public funds or in banks, or any other property of either party, shall ever in the event of war or national differences, be sequestered or confiscated.
And the treaty between France and Peru, March 9, 1861, 8 De Clercq, 197. provides, that neither debts due by individuals nor public stocks, nor shares in companies, &c., can be seized, sequestered or confiscated to the prejudice of the respective citizens and to the benefit of the country where they may be.
Treaties unaffected by war.
905. War does not affect the compacts of a nation, except when so provided in such compacts; and, except also that executory stipulations in a special compact between belligerents which by their nature are applicable only in time of peace, are suspended during the war.
Halleck, (Intern. Law and Laws of War, 371,) says: “A declaration of war does not ipso facto extinguish treaties between belligerent States. Treaties of friendship and alliance are necessarily annulled by a war be. tween the contracting parties, except in respect to such stipulations as are made expressly with a view to rupture, such as limitations of the general rights of war, &c. So, of the treaties of commerce and navigation; they are generally either suspended or entirely extinguished by a war between the parties to such treaties. All stipulations with respect to the conduct of war, or with respect to the effect of hostilities upon the rights and property of citizens and subjects of the parties, are not impaired by supervening hostilities—this being the very contingency in. tended to be provided for,-but continue in full force until mutually agreed to be rescinded. There are many stipulations of treaties, which although perpetual in their character, are suspended by a declaration of war, and can only be carried into effect, on the return of peace."
Kent, (Commentaries, v. I., p. 420,) says: “As a general rule, the ob. ligations of treaties are dissipated by hostilities. But, if a treaty con. tain any stipulations which contemplate a state of future war, and make provision for such an exigency, they preserve their force and obligation when the rupture takes place. All those duties of which the exercise is not necessarily suspended by the war, subsist in their full force."
As to the restoration of treaty obligations suspended by the war, see Bluntschli, Droit Intern. Codifié, $ 718.
See also, Society for the Propagation of the Gospel o. New Haven, 8 Wheaton's U. 8. Supr. Ct. Rep., 464; the debate in the House of Com. anons, on the Declaration of Paris, of 1856; Speeches of Sir George Lewis and Mr. Bright, of March 11 and 17, 1862 ; and of the Earl of Derby, of Feb. 7, 1862 ; Dispatch of Mr. Marcy to Mr. Mason, of Dec. 8, 1856: Phil limore's International Law, v. III., App. 21 ; Dana's Wheaton, Elem. of Intern. Laro, note 143, p. 352.
Effect of war on executory contracts.
906. All executory contracts, which directly subserve the purposes of war, and to which enemies, active or passive, are parties ; and all executory contracts between any parties the execution of which would by reason of war involve a violation of any provision of this Book, are annulled, by the existence of war; sav. ing the right of just compensation for any performance already had. The validity of other contracts is not affected by the existence of war.
But this article does not apply to international compacts.
In a recent case in the court of appeals of Virginia, (Manhattan Life Ins. Co. v. Warwick, Insurance Law Journal, vol. I., pp. 115, 126,) the distinction is stated thus: Where the contract is made before the war, but not executed by either party, and the carrying it into execution would involve a violation of the duties of the parties respectively to their country, in the new relation which the war has created ; in that case its execution not having been entered upon, and it being uncertain how long the war may last and prevent the execution of the contract, it may be dissolved; and this not to the prejudice of the parties, or either of them, but for their presumed convenience and benefit to be absolved from the obligation of a contract, which, in the changed relations of their countries, can not be carried into execution. On the other hand, if the con. tract is partly executed, and rights under it have vested, and it can not be dissolved without the loss of forfeiture of one of the parties, and it can not be carried into execution consistently with the duty of the parties to their countries respectively, while the war lasts ; in such case it should not be dissolved, but only suspended. But if it can be carried into execution notwithstanding the war, without conflicting with the obligation of allegiance of either party, it will be neither dissolved nor suspended.
Removal of interdiction.
907. A contract, which is annulled by the last article, is not restored to validity by the return of peace. Esposito o. Bowden, 4 Elis & Blackburn's Rep., 693.
Anticipation of war.
908. The anticipation, however well founded, of a war not declared or commenced, does not affect existing obligations.
Pole v. Cetovich, 9 Common Bench Rep., N. 8., 430.
Extension of time.
909. The time for performance of any act which is forbidden or prevented by war, in respect of which act time is of the essence of the obligation, except in the rase of obligations annulled by article 906, is suspended until a reasonable period for performance after the interdiction or impediment is removed.
The authorities seem to agree that in case of statutory or prescriptive limitations, the period of war is to be deducted from the time limited. In respect to conventional limitations, such as those usual in insurance policies, &c., there is a difference of opinion whether, 1. The same rule should apply; or whether, 2. The intervention of war wholly annus the conventional limitation; or whether, 3. The party should only be allowed a “ reasonable time ” after the removal of the disability. Simmes v. City Fire Ins. Co., 6 Blatchf., 455; Apperson o. Bynum, 5 Coldwell's (Tennessee) Rep., 341.
When presentment of negotiable paper can not be made on account of the disturbed condition of the country, by civil or foreign war, presentment will be excused during the continuance of the obstacles, and for a reasonable time thereafter. Polk o. Spinks, 5 ld., 431. In such case, the notice of protest to a party in the hostile country must be sent when the interruption of intercourse ceases. Harden o. Brown, 59 Barbour's (Nero
York) Rep., 425 ; citing Edwards on Bills, 458; Hopkirk v. Page, 2 Brockenbrough's U. 8. Circ. Ct. Rep., 20, 34.
Interest, damages, &c., for delay. 910. No interest, damage, or penalty is incurred, by reason of the non-performance of an obligation while its performance was rendered unlawful by war.
The rule, that interest is not recoverable on debts between alien enenies, for the time of the war, is only applied where the money was to be paid to an enemy directly. When the creditor, or an agent appointed to receive the debt, resides in the same jurisdiction as the debtor, interest continues. Ward o. Smith, 7 Wallace's U. 8. Supr. Ct. Rep., 453. This rule was held not to apply to a civil war, in Shortridge o. Macon, 1 Abbott's United States Rep., 58 ; 8. C., 1 American Law Review, 95.
CHAPTER LX X.
EFFECT OF A STATE OF WAR UPON INTERCOURSE.
ARTICLE 911. Diplomatic intercourse.
912. Rights of public agents of neutral nation accredited to belo
911. During war, or at any time after the declaration thereof, a belligerent may expel any or all public agents appointed or accredited to it by the enemy. Diplomatic relations shall not entirely cease, but thereupon each belligerent shall designate the representative of some friendly nation, party to this Code, through whom it may maintain communication with the other belligerent while the ordinary diplomatic relations are interrupted.'
See Article 93.
The law should authorize expulsion, not merely the deprivation of official power.
For an account of the humane labors of Mr. Washburn on behalf of the German population of Paris, see Foreign Relations of the United States, 1871, p. 266.
The invoking of such friendly offices, which has already been done with the most advantageous results, now requires the consent of the bel. ligerent, to which the representatives of friendly powers undertaking such offices are accredited. See Foreign Relations of the United States, 1870, p. 119, et seq. The adoption of the above Article would give neutral representatives a right thus to intervene. The present rule of the United States government requires tbe consent of both the nations concerned. Foreign Relations of the United States, 1871, p. 543.
Rights of public agents of neutral nation accredited to belligerent nation.
912. Public agents appointed or accredited by a neutral nation to a belligerent, have a right, notwithstanding the war, to go to and remain at their posts;' to send or receive their official dispatches under the official seal of themselves or their governments ;' and to pass through the military lines of the hostile nation, together with their families, official and personal, when necessary for the purpose of reaching or removing from their respective posts.
' Letter of Mr. Fish, Foreign Relations of the United States, 1871, p 401.
. In the Franco-Prussian war, during the seige of Paris, the official dispatches between the government of the United States and their legation in Paris, were transmitted to and fro, across the lines, by the bellig. erents, subject, however, to delay imposed by the military forces. Pri. vate correspondence and newspapers were also allowed transmission into Paris in the official dispatch bag, the former being examined to exclude everything relating to the war, and newspapers being passed on a pledge that they should only be read by the American minister. Foreign Rela. tions of the United States, 1871, pp. 283–287.
The right of the neutral government to communicate with its representative in the besieged city, was not fully conceded by Count Bismarck