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The Law of Nations or the Principles of Natural Law (1758)
Emmerich de Vattel
Of the Enemy, and of Things Belonging to the Enemy
§ 69. Who is an enemy.1
THE enemy is he with whom a nation is at open war. The Latins had a particular term (Hostis) to denote a public enemy, and distinguished him from a private enemy (Inimicus). Our language affords but one word for these two classes of persons, who ought, nevertheless to be carefully distinguished. A private enemy is one who seeks to hurt us, and takes pleasure in the evil that befalls us. A public enemy forms claims against us, or rejects ours, and maintains his real or pretended rights by force of arms. The former is never innocent; he fosters rancor and hatred in his heart. It is possible that the public enemy may be free from such odious sentiments, that he does not wish us ill, and only seeks to maintain his rights. This observation is necessary in order to regulate the dispositions of our heart towards a public enemy.
§ 70. All the subjects of the two states at war are enemies.
When the sovereign or ruler of the state declares war against another sovereign, it is understood that the whole nation declares war against another nation; for the sovereign represents the nation, and acts in the name of the whole society (Book I. §§ 40, 41;) and it is only in a body, and in her national character, that one nation has to do with another. Hence, these two nations are enemies, and all the subjects of the one are enemies to all the subjects of the other. In this particular, custom and principle are in accord.
§ 71. and continue to be enemies in all places.
Enemies continue such wherever they happen to be. The place of abode is of no consequence here. It is the political ties which determine the character. Whilst a man continues a citizen of his own country, he is the enemy of all those with whom his nation is at war. But we must not hence conclude that these enemies may treat each other as such, wherever they happen to meet. Every one being master in his respective country, a neutral prince will not allow them to use any violence in his territories.
§ 72. Whether women and children are to be accounted enemies.
Since women and children are subjects of the state, and members of the nation, they are to be ranked in the class of enemies. But it does not thence follow that we are justifiable in treating them like men who bear arms, or are capable of bearing them. It will appear in the sequel, that we have not the same rights against all classes of enemies.
§ 73. Things belonging to the enemy.
When once we have precisely determined who our enemies are, it is easy to know what are the things belonging to the enemy (res hostiles). We have shown that not only the sovereign with whom we are at war is an enemy, but also his whole nation, even the very women and children. Every thing, therefore, which belongs to that nation, — to the state, to the sovereign, to the subjects, of whatever age or sex, — everything of that kind, I say, falls under the description of things belonging to the enemy.
§ 74. continue such everywhere.
And, with respect to things, the case is the same as with respect to persons: — things belonging to the enemy continue such, wherever they are.2 But we are not hence to conclude, any more than in the case of persons (§ 71), that we everywhere possess a right to treat those things as things belonging to the enemy.
§ 75. Neutral things found with an enemy.
Since it is not the place where a thing is, which determines the nature of that thing, but the character of the person to whom it belongs, — things belonging to neutral persons, which happen to be in an enemy’s country, or on board an enemy’s ships, are to be distinguished from those which belong to the enemy. But it is the owner’s business to adduce evident proof that they are his property: for, in default of such proof, a thing is naturally presumed to belong to the nation in whose possession it is found.3
§ 76. Lands possessed by foreigners in an enemy’s country.
The preceding section relates to movable property: but the rule is different with respect to immovable possessions, such as landed estates. Since all these do in some measure belong to the nation, are part of its domain, of its territory, and under its government (Book I, §§ 204, 235, Book ii. § 114) — and since the owner is still a subject of the country as possessor of a landed estate, — property of this kind does not cease to be enemy’s property (res hostiles), though possessed by a neutral foreigner. Nevertheless, war being now carried on with so much moderation and indulgence, protections are granted for houses and lands possessed by foreigners in an enemy’s country. For the same reason, he who declares war does not confiscate the immovable property possessed in his country by his enemy’s subjects. By permitting them to purchase and possess such property, he has in that respect admitted them into the number of his subjects. But the income may be sequestrated, in order to prevent its being remitted to the enemy’s country.
§ 77. Things due to the enemy by a third party.
Among the things belonging to the enemy, are likewise incorporeal things, — all his rights, claims, and debts, excepting, however, those kind of rights granted by a third party, and in which the grantor is so far concerned, that it is not a matter of indifference to him, in what hands they are vested. Such, for instance, are the rights of commerce. But as debts are not of this number, war gives us the same rights over any sums of money due by neutral nations to our enemy, as it can give over his other property.4
When Alexander, by conquest, became absolute master of Thebes, he remitted to the Thessalians a hundred talents which they owed to the Thebans.5 The sovereign has naturally the same right over what his subjects may owe to enemies, he may therefore confiscate debts of this nature, if the term of payment happen in the time of war; or at least he may prohibit his subjects from paying while the war continues. But, at present, a regard to the advantage and safety of commerce has induced all the sovereigns of Europe to act with less rigor in this point.6 And as the custom has been generally received, he who should act contrary to it would violate the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. The state does not so much as touch the sums which it owes to the enemy: money lent to the public is everywhere exempt from confiscation and seizure in case of war.
1. As to the definition of an alien enemy, and of what is less than a general enemy, and merely an hostile character, or hostile residence, or hostile trade, and of the modern decisions on the diversities; see Boedes Lust, 5 Rob. Rep. 233; 1 Chitty’s Commercial Law, 394 to 412, Id. Index, tit, Hostile Character, and Chitty L. Nat. 30 to 64.
In some cases, the generous and beneficial conduct of an enemy will obliterate his hostile character, and preclude his property from becoming subject to seizure, as was beautifully Illustrated by Sir W. Scott‘s decision in Jonge J. Baumannn, where an English frigate, with her officers and crew, having been saved from shipwreck by a foreign (neutral) vessel and crew, the former ingratefully carried the latter into port as prize; {asserting she had French property on board;} but a restoration was decreed, on the ground that such a service had blotted out and obliterated the character of an enemy, {if it had ever existed, which was not the fact.} 1 Rob. Rep. 245; and see §§ 176, post, pp. 374-5.
Of the illegality of commerce between subjects of belligerent states. — Vattel is very succinct upon this, in modern times, the most important consequence of war. In general it is illegal for the private subjects of belligerents to have any commercial transactions or dealings between each other, in expectation of or pending the war; for otherwise assistance might be rendered to the enemy, enabling them to protract the war, and under color of commerce, secret communications might be made injurious to the states of each country; and therefore there is no such thing as a war for arms, and a peace for commerce. The rule and the principle upon which it is founded, are fully commented upon in the case of The Hoop, 1 Rob. Rep. 196; Potts v. Bell, 8 Term Rep. 546; Mennet v. Bonham, 15 East, 489; William v. Patteson. 7 Taunt. 439; Grotius, B. 3, c. 4, s. 8; Binkershoek, B. 1, c. 3; Chitty’s L. Nat. 1 to 27. The exceptions to that rule are sometimes by express treaty; (see 2 Ward’s Law of Nat. 358); and in Great Britain have been permitted by temporary acts, or by orders in council, authorizing the privy council to grant licenses. (See Phillimore on Licenses, 5.) The case of prisoners at war contracting for necessaries, constitutes an exception. Antoine v. Morshead, 6 Taunt. 237-447; 1 Marsh. Rep. 558; Danby v. Morshead, 6 Taunt. 332; Vattel, post, § 264, p. 414.
Questions sometimes arise, whether a commercial transaction between parties in different countries, afterwards at war with each other, as for instance, Great Britain and America, pending war, or on the eve of war, between these countries, was pactum illicitum. If it be pending war, or in contemplation of it, and against its spirit, and not expressly licensed by the Government, then it is illegal, See the rule in the case of McGaven v. Stewart, in the House of Lords, (14 July, 1830), 4 Wlls. & Shaw, 193-4. An alien carrying on trade in an enemy’s country, though resident there also in the character of consul of a neutral state, has been considered an alien enemy, and as such disabled to sue, and liable to confiscation. Albrecht v. Sussmann, 2 Ves. & Beames, 323.
But these rules prohibiting commerce between the subjects of belligerent states, do not affect neutrals: (excepting, indeed the liability to visitation and search); and therefore, actions may be sustained in England by a neutral on a promissory note given to him by a British subject in an enemy’s country, for goods sold by the neutral to the latter there. Cowp. 363; Hourret v. Morris, 3 Camp. 303. And it has even been held, that an Englishman domiciled in a foreign state in amity with this country may lawfully exercise the privileges of a subject of the place where he is resident, to trade with a nation in hostility with England, 1 Maule & Selwyn 726, sed quæ re. {See Livingston v. The Maryland Ins. Co. 7 Cranch, 506.} But in general he who maintains an establishment or house of commerce in a hostile country, is to be considered as impressed with a hostile character, with reference at least to so much of his commerce as may be connected with that establishment; and this, whether he maintains that establishment as a partner, or as a sole trade, The Citto, 3 Rob. 38; The Portland, Id. 41 to 44. — C.
2. See Johnson et al. v. Twenty-one Bales, etc. Van Ness, Prize Causes, p. 7.
3. As to protection to neutrals’ property and modern decisions, see 1 Chitty’s Commercial Law, 385-440; Id. Index, tit. Neutrals; 1 Chitty’s L. Nat. 34, 54, 110-113, 183; Id. Index, tit. Neutrals. — C.
4. This was the ancient law of nations. Att. Gen. v. Weedon, Parker Rep. 267, though certainly denied by Rolle, J. At all events it is now altered; see authorities, ante, Bk. 2, Chap. 18, note 7. 1 Chitty’s Commercial Law, 423; 1 Chitty’s L. Nat. 82 to 86. — C. {But see Fairfax v. Hunter, 5 Cranch, 19.}
5. Grotius, De Jure Belli et Pacis, lib. iii. cap. viii § 4.
6. See supra, note 4.