ers of war and the like), all contracts concluded during war with enemy subjects are illegal and hence null and void. No action upon such contracts will be entertained, either during or after the war. But contracts made before the war are usually merely suspended as to their execution, and the enemy subject's right of suit revives at the close of the war.27 Commercial partnerships are dissolved, as are in general all executed and executory contracts existing between enemy subjects which require further acting upon during hostilities, executory contracts which do not require to be further acted upon being merely suspended.28

On Ransom Bills, see * Atherley-Jones, Commerce in War, (1907), 585, 637-645; Bordwell, 227; Bonfils (Fauchille), No. 1414; De Boeck, Nos. 257-267; 4 Calvo, $2422-2429; Dupuis, Nos. 269-277; * Hall (6th ed.), 455-456; 2 Halleck (Baker's 3d ed.), 329-333; *Lawrence (3d ed.), § 208; Ibid. (4th ed.), § 184; 7 Moore, Digest, § 1214; 2 Oppenheim, § 195; Perels, § 57, pp. 336-337; 3 Phillimore, §§ 109-110; Phillipson, 67-68; Pillet, No. 228; 8 P.-Fodéré, Nos. 3189–3190; * Scott, Cases, 566-584; 2 Twiss, §§ 180-181; * Westlake, 158-160; Wheaton, § 411 and Dana's note, No. 199; Woolsey, § 150.

27 But these rules do not apply to aliens of belligerent nationality who are permitted to reside in the enemy country. "An alien enemy residing in this country may contract and sue like a citizen (2 Kent, Com., 63). When the creditor, although a subject of the enemy, remains in the country of the debtor, or has a known agent there authorized to receive the amount of the debt, throughout the war, payment then to such creditor or his agent can in no respect be construed into a violation of the duties imposed by a state of war upon the debtor." Justice Gray, in Kershaw v. Kelsey (1868), 100 Mass., 561, and Scott, 537.

28 Bentwich, War and Private Property, 48-49. Bentwich cites Esposito v. Bowden (24 L. J. Q. B. 210, and 4 E. & B. 763) a case growing out of the Crimean -as the leading case on this subject.

War

The leading case on the dissolution of commercial partnerships is Griswold V. Waddington (Court of Errors of N. Y., 1819), 16 Johnson's Reports, 438, and Scott, 504. The leading case on ordinary contracts is Ex parte Boussmaker (Chancery, 1806), 13 Vesey Jun. 17, and Scott, 494. In Hoare v. Allen (Sup. Ct. of Pa. 1789), 2 Dallas, 102, and Scott, 498, it was held that interest on a mortgage due a British subject residing in London in 1773 did not run during the Revolutionary War. But this decision is in conflict with Ex parte Boussmaker. In Hanger v. Abbott (1867), 6 Wallace, 532, and Scott, 500, our Supreme Court held that the Statute of Limitations did not run whilst the right of action is suspended by

war.

In N. Y. Life Ins. Co. v. Stathem (1876), 93 U. S. 24, and Scott, 512, our Supreme Court decided that non-payment of premiums, due to the outbreak of war, annuls a life insurance policy "in which time is material and of the essence of the contract"; but that the insured is "fairly entitled to have the equitable value of his policy," i.e. the amount of the premiums actually paid, minus the value of the insurance enjoyed.

In Kershaw v. Kelsey (1868), 100 Mass. 561, and Scott, 536, Justice Gray thus summarized the law governing intercourse between enemy subjects as judicially declared in Great Britian and the United States:

BIBLIOGRAPHY

Effect of War on Corporations. Baty, Int. Law in South Africa, ch. 6; Ibid., in J. C. L. for April, 1908; Bentwich, War and Property, 57 ff.; Chadwick, in 20 L. Q. R. (1904), 167 ff.; Latifi, Effects of War on Property, 54 ff.; Phillipson, Effects of War on Contracts, 91 ff.; Westlake, in J. C. L. ! for April, 1909 (reply to Baty).

Declaration of War and its Immediate Effects. Anis, Du droit de déclarer la guerre (1909); Bellat, La déclaration de guerre (1909); Bluntschli, Arts. 521-556;* Bonfils (Fauchille), Nos. 1027-1065; Bordwell, Pt. II. ch. 1; Bruyas, De la déclaration de guerre (1899); Bry, Nos. 378-385; 4 Calvo, §§ 1899-2003; Despagnet, Nos. 517-523; Dupuis, in 13 R. D.I. P. (1906), 725 ff.; Féraud-Giraud, in 17 R. D. I. (1885), 19 ff.; Funck-Brentano et Sorel, Précis, liv. II, c. 2; Hall, Pt. III, ch. 1; 1 Halleck, ch. 17; Heffter (Geffcken), §§ 120-123; * Lawrence (3d ed.), 161, 165-168, 195-198; Ibid., (4th ed.), §§ 140, 143–146, 171-174; Liszt (3d ed.), § 39; Longuet, Le droit actuel de la guerre terrestre (1901), §§ 1-15; Lueder, in 4 Holtzendorff, 332-362; Manche, La déclaration de la guerre, etc. (1909); 3 F. de Martens, §§ 108-109; Maurel, De la déclaration de la guerre (1907); * Maurice, Hostilities without Declaration (1883); Ibid., in Nineteenth Century, April, 1904; Mérignhac, De la guerre sur terre (1903), 29-65; 7 Moore, Digest, §§ 1106-1108; Ibid., in 37 R. D. I. (1905), 517 ff.; 2 Oppenheim, §§ 93-102; Owen, Declaration of War (1889); 3 Phillimore, Pt. IX, chs. 5-8; * Pillet, Les lois actuelles de la guerre (1901), ch. 3; 2 Piédelièvre, Nos.

*

It "prohibits all intercourse between citizens of the two belligerents which is inconsistent with the state of war between their countries; and this includes ... any act or contract which tends to increase his resources; and every kind of trading or commercial dealing or intercourse, whether by transmission of money or goods, or by orders for the delivery of either, between the two countries, directly or indirectly, or through intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission or by insurances upon trade or with the enemy. Beyond the principles of these cases the prohibition has not been carried by judicial decision.

"At this age of the world," he continued, "when all the tendencies of the Law of Nations are to exempt individuals and private contracts from injury or restraint in consequence of war between their Governments, we are not disposed to declare such contracts unlawful as have not been heretofore adjudged to be inconsistent with a state of war."

Consequently, the Supreme Court of Massachusetts unanimously decided that the plaintiff, the owner of a sugar planation in Mississippi, might recover unpaid rent, etc., on land which he had leased to the defendant, a citizen of Massachusetts, during the Civil War. "It is perhaps not too much to say that this is the leading American case on this subject. It has been repeatedly cited and followed." Scott, 538 n.

The legal rights of debenture holders and shareholders in companies incorporated or trading in an enemy country do not appear to have been definitely defined, but there appears to be no sound reason for confiscating their property or holding their connection with the corporation dissolved on the analogy of commercial partnerships.

*

806-849; 6 P.-Fodéré, Nos. 2671-2720; 2 Rivier, 220-237; St. Croix, La déclaration de guerre, etc. (1892); * Scott, Cases, 464-584; Snow, Cases, 250-314; Taylor, §§ 455-468; Ullmann (2nd ed.), §§ 171-173; Vattel, liv. III, §§ 51-65; Walker, Manual, 88 37-50; *2 Westlake 18-51; Wheaton, Pt. IV, ch. 1, and Dana's notes, Nos. 156-158; Wilson, chs. 10-11; Woolsey, 120-124.

CHAPTER XXV

THE LAWS OF LAND WARFARE

351. The Chief Means and Aims of Land Warfare. - Land warfare has two main aims the reduction or defeat of the enemy's armed land forces, and the temporary occupation and administration of the whole or a portion of the enemy's territory. The chief means by which it is sought to accomplish these ends are the application of armed force and the enforcement of military or martial law. The law of military occupation will be dealt with in the following chapter.

I. LAWFUL BELLIGERENTS

352. Who are Lawful Belligerents? - The Hague Regulations respecting the Law and Customs of War on Land lay down these definite rules relating to lawful belligerents:

"The laws, rights and duties of war apply not only to the army, but also to militia and volunteer corps fulfilling the following conditions:

"(1) To be commanded by a person responsible for his subordinates;

"(2) To have a distinctive emblem fixed and recognizable at a distance.

"(3) To carry arms openly; and

(4) To conduct their operations in accordance with the laws and customs of war.

"In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army' (Art. 1).” 1

1 H. R. (1899 and 1907), Art. 1. Cf. B. D. (Brussels Declaration of 1874), Art 9, of which H. R., I is almost an exact verbal reproduction. For the text of B. D.,

353. Levies en masse. - "The population of a territory which has not been occupied who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war (Art. 2)." 2

see Higgins, The Hague Peace Conferences, 273 ff.; or Scott, Texts of the Peace Conferences at the Hague, 382 ff.

These conditions were not observed by the Prussians during the Franco-German War of 1870-1871. They required that "every prisoner, in order to be treated as a prisoner of war, shall prove that he is a French soldier by showing that he has been called out and borne in the lists of a military organized corps, by an order emanating from the legal authority and addressed to him personally" - an impossible requirement. They also required an emblem or distinctive mark, clearly distinguishable at rifle distance an absurd condition in these days of long-distance firing. See especially: Bordwell, 90 ff.; Hall (6th ed), 510 ff.; Lawrence (4th ed.), § 219; * Spaight, War Rights on Land, 41-46; and 2 Westlake, 61.

It should be noted that H. R., 1 leaves several important questions, such as the use of guerilla troops and savages in land warfare, to be dealt with by "the principles of the Law of Nations, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience." 4 H. C., Preamble. See Higgins, 211.

The Hague Regulations appear in the form of an annex to 4 H. C. (the Fourth Hague Convention of 1899 and 1907), by which the Contracting Parties agreed to issue to their armed land forces instructions which shall be in conformity with these Regulations. The provisions contained in them are declared to be "only binding between Contracting Powers, and only if all the belligerents are parties to the Convention: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to make compensation. It shall be responsible for all acts committed by persons forming part of its armed forces." 4 H. C. (1907), Arts. 1-3.

Whether guerrilla, irregular, or detached bodies of men are entitled to the privileges of legitimate combatants, would seem to depend upon whether they fulfill the four conditions laid down in 1 H. R., 1. On Guerrilla Warfare, see especially the somewhat lengthy citation from Leiber's Miscellaneous Writings (II, 277 ff.), in 1 A. J. (1907), 15-18.

The use of so-called savage or semi-barbarous troops in modern warfare would appear to be subject to the same conditions. During the Russo-Japanese War, Admiral Alexieff issued an order offering special inducements to convicts from the island of Sakhalin to enlist in the Russian army. Though this cannot be regarded as a positive violation of the Law of Nations, "there is something peculiarly revolting to modern conceptions of humanity in the employment of criminals for purposes of warfare." Hershey, Int. Law and Diplomacy of the Russo-Japanese War, 309311. Cf. Ariga, § 25.

H. R., 2. The italicized phrase was added in 1907. Cf. B. D., Art. 10. This article recognizes the legality of levies en masse provided they fulfill the two conditions laid down. It represents a compromise between the opposing view of the larger and smaller States both at Brussels and at The Hague. The delegates from the weaker Powers desired a general recognition of levies en masse in occupied