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course, to a state of utter occlusion, to any intercourse out one of open hostility, to any meeting but in actual coinbat."
A leading case in England is that of The Hoop, (1 Robinson's Rep., 196.) in which Sir WM. SCOTT reviewed the authorities, and concluded that intercourse could vot subsist on any other footing than that of the direct permission of the State. “There is no such thing," said Sir John NICHOLL, (the King's Advocate in Potts o. Bell, 8 Durnford & East's Rep., 548, 554,)“ as a war for arms, and a peace for commerce."
The rule that war dissolves commercial partnerships was even applied to the case of a firm, two members of which resided in the North, and one in the South, at the breaking out of the civil war in the United States, and the court refused to consider the allegiance or disposition of the latter. Wood v. Wilder, 43 New York Rep., 164.
The prohibition extends to the mere carrying of messengers and dispatches. The Tulip, 3 Washington's U. 8. Circ. Ct. Rep., 181.
Dana thus reviews the subject : During the Crimean war, the rule of non. intercourse with the enemy was greatly relaxed by the belliger. ents ; but it was done by orders and proclamations in advance, professedly relaxing a rule which otherwise the courts of prize would have been obliged to apply. The Order in Council, of 15th April, 1854, permitted British subjects to trade freely at Russian ports not blockaded, in neutral vessels, and in articles not contraband, but not in British vessels. (London Gazette, April 18, 1854.) The French orders were to the same effect. The Russian Declaration of 19th April, permitted French and English goods, the property of French or English citizens, to be imported into Russia in neutral vessels. (London Gazette, May 2, 1854.) The French and Russian governments allowed private communications, not contraband in their nature, to be exchanged between their subjects by telegraph. (Courier des Etats Unis, 230 July, 1855.) The subject is not touched by the Declaration of Paris of 1856. The Orders in Council must therefore be considered as a special relaxation, adopted from reasons of policy applicable to that war, and as to which each nation must judge for itself as to any future war. In the debates in Parliament, and in speeches made by public men in the commercial cities, as well as in the memorials of merchants, and in contributions to the press, during and soon after the Crimean war, there was a strong disposition evinced to have all trade left free, and to confine the operations of wars to government property and persons or vessels in public belligerent employment. Dana': Wheaton, Elements of Intern. Lau, note 158, p. 400.
See the English authorities on National Character, as related to the question of belligerent rights, collected in 2 Wildman's International La p. 36-117; Castle's Law of Commerce in Time of War, pp. 27–39; and the same subject with the American authorities in Lawrence's Wheaton, Elen. of Intern. Law, pp. 557–580, SS 16–22 ; Dana's Wheaton, SS 318–340.
Commencement and termination of illegality.
of a voyage to, or other effort at intercourse with, a belligerent place, with knowledge of the war, and in the execution of a purpose to carry on unlawful traffic or intercourse, is unlawful; but a voyage or other effort at intercourse commenced without such knowledge or purpose, is not rendered unlawful by the subsequent commencement of hostilities,' unless thereafter persisted in. And, when the military occupation or interdiction, which renders traffic with a place illegal, ceases, the right to capture property engaged in such traffic ceases at the same time.'
2 Wildman's International Law, p. 23. * 5 Robinson's Rep., 251.
Transfer of ships during war.
928. An actual and unconditional transfer of a private ship of one belligerent to another, or a neutral, if in accordance with article 275, is valid and effectual to change the national character. '
The rule established by the courts is, that a transfer of property to a neutral by an enemy, in time of war, or in aid of a contemplated war, is illegal, as in violation and fraud of vested belligerent rights. The Bernon, 1 Ch. Robinson's Rep., 102 ; The Noydt Gedacht, 2 ld., 137, note ; The Minerva, 6 ld., 396, 400, note; The Rosalie and Betty, 2 Id., 343 ; The Mercy, Blatchford's Prize Cases, (U. 8. Dist. Ct.,) p. 187; The Georgia, 7 Wallace': U. S. Supr. Ct. Rep., 32.
The principal rules as to the national character of property, during war, as laid down by the judicial authorities, are as follows:
1. Ships. A ship, freely navigating solely under the flag or pass of any other nation than that of its owner, bears the national character of such other nation. 1 Kent's Commentaries, 85. A foreign flag may be hoisted under the regulations of a particular trade. Arnold o. Delcoli, Bee': Adm. (U. 8.) Rep., 5.
The presumption of national character arising from these emblems of nationality may be rebutted by the presence of other instruments found in the possession of the captain. Gouget et Merger, III., p. 260, S 45.
As to pational character of shipping, see Lawrence's Wheaton, Elem. of Intern. Law, p. 580, § 22; Dana's Wheaton, $ 340; The Julia, 8 Cranch's U. 8. Supr. Ct. Rep., 181 ; The Hiram, 8 Id., 404 ; The Aurora, 8 Id. 203.
2. Establishments of trade. The ownership of, or interest in, a com
mercial establishment, and its branches, bears the national character of the nation within whose limits the chief establishment is situated. Laxrence's Wheaton, Elements of Intern. Lau, p. 573, $ 19; The Freundschaft, 4 Wheaton's U. 8. Supr. Ct. Rep., 105.
The British and American courts make a further exception in the case of an owner domiciled in a hostile country, and owning a share in a house of trade established in a neutral country, (Lawrence's Wheaton, Elem. of Intern. Law, p. 575, $ 20 ;) an exception which shows “ strong marks of partiality towards the interests of captors."
3. Products of the soil. The national character of the products of the soil of the territory of a nation is that of the territory, so long as they belong to the owner of the soil. Lawrence's Wheaton, Elem. of Intern. Law, p. 576, $ 21.
Penalty of illegal traffic and intercourse.
929. Property which is made the subject or vehicle of traffic that is illegal, under the provisions of this Book, is liable to capture and confiscation ; and persons engaged in intercourse that is illegal, under the provisions of this Book, are liable to capture and detention, in the manner provided in this Book.
See Chapters LXIII. and LXVI.
The rules for ascertaining the destination of a voyage, (as distinguished, however, from the destined use of a ship or cargo,) are prescribed by Articles 855-858.
EFFECT OF A STATE OF WAR UPON THE ADMINISTRATION
Both the English and American courts refuse, in general, to sustain any action during war, either by or in favor of an alien enemy. Brandon v. Nesbitt, 6 Term. Rep., 23; Mumford.o. Mumford, 1 Gallison's U.S. Circ. Ct. Rep., 366. After peace is restored between the nations, the members of each may sue in the courts of the other, even upon contracts made during the war ; (Antoine o. Morshead, 1 Marsh., 588; 6 Taunton's Rep., 237 ; and see Sparenburgh 0. Bannatyne, 1 Bosanquet & Puller's Rep., 163; 2 Espinasse's Rep., 580 ;), though a contrary rule was recognized in the case of Anthon v. Fisher, 2 Douglass' Rep., 649, n. It is, however, admitted that an alien enemy may sue, if he come under circumstances that put him in the Sovereign's Peace pro hac vice,-e. g., a pass, cartel, of flag of truce. Triss Law of Nations, Part II., p. 109. And since, ac
cording to Article 750, passive enemies are treated as to a certain extent in a condition of peace; a condition which it is one of the pur. poses of this Book to maintain for non-combatants during war, it should seem proper to allow them, as a general rule, to sue in the courts of any nation.
Thus, no restriction on the resort to civil justice is contained in this Book, except such as is implied in the power of a belligerent to interdict the presence of foreigoers. See Article 913.
In Juando v. Taylor, (2 Paine's U. 8. Circ. Ct. Rep., 652,) it was held, that no suit or proceeding could be maintained in the courts of a neutral nation by the subjects of one belligerent against the subjects of another, for acts growing out of the war.
ARTICLE 930. Suspension of remedies.
931. Private rights protected.
Suspension of remedies.
930. A belligerent may suspend, during the war, the right of enemies, whether active or passive, to resort to its civil courts for judicial remedies, except in cases of prize.
The general principle, that peaceful commerce, subject to the restrictions defined by this Code, is lawful, requires the continuance of judicial remedies, subject of course to a power of suspension, which will provide for all the exceptions to the freedom of intercourse.
According to the recent case of Zacharie o. Godfrey, (50 Illinois Rep., 186,) the question whether an alien enemy should be excluded from the courts of a nation, depends on the consideration of his actual residence during the war in the hostile country, and the probable effect of a re. covery, to place the money recovered within reach of the enemy, rather than of his citizenship in the hostile nation.
The disability is a suspension of the remedy, not an extinguishment of the right of action.
Private rights protected.
931. Subject to the last and the next two articles, a belligerent is bound to recognize and protect the pri vate rights of passive enemies and neutrals, both in respect of person and property; and, except when the courts are open and can afford adequate redress, to punish offenses against the same, by military authority.
Leiber's Instructions, | 37; Hanger 0. Abbott, 6 Wallace's U. 8. Supr. Ct. Rep., 532; Elzee v. Lovell, 1 Woolworth's U. 8. Circ. Ct. Rep., 102, 110.
The principle, that an alien enemy has no standing in court, and can not appear and defend his property, seized as a prize of war on the highseas, does not apply to a claimant in the admiralty. An alien enemy may appear as claimant of his property, libeled for condemnation as forfeited. United States o. Shares of Stock, 5 Blatchford's U. 8. Circ. Ct. Rep., 231.
No civil remedy against lawful hostilities.
932. Acts done by the military power, if within the scope of military operations, as defined by this Book, are not the subjects of civil remedies against individuals, except in the cases herein provided.
Compare Articles 721, 722, 723, 887 and 888. An action does not lie in the courts of one pation for acts done by the military forces of another nation, while the two were at war. The remedy is by application to the government. But this rule does not apply to a civil or domestic war.
A number of American authorities, in cases arising in the late civil war, held that an act which is a violation of the laws of war, such as burning
by the command of a superior officer. Christian County Court o Rankin, 2 Duvall, 502 ; Yost o. Stout, 4 Coldwell, (Tennessee,) Rep., 205 ; Witherspoon v. Woody, 4 Id., 605 ; Terrill v. Rankin, 2 Bush Rep., 453.
Prescriptions and statutes of limitations.
933. The declaration or existence of war between nations prevents the operation of the rules of prescription, and the running of the statutes of limitations,' of each nation, as against members and domiciled residents of the other, from the declaration, or the first act of hostility, whichever may be the earlier, to the final ratification of the treaty of peace,' excepting such time as the parties were permitted to remain in the country and the courts were open to them.'
Jackson Ins. Co. v. Stewart, 6 American Law Reg. N. S., 732. i Perhaps conventional limitations of actions, like those common in insurance policies, should be included with statutes of limitations in the above article. If they are not so included, the effect of Article 909