of hostilities, and many have not been declared formally at all. Declaration at the present time is usually but a formal acknowledgment of a well-known fact. In the case of the war in South Africa, early in October, 1899, the government of the Transvaal requested the government of Great Gritain to give 'an immediate and affirmative answer,' not later than 5 P. M. on October 11th, to certain questions in the accompanying ultimatum as to settling differences by arbitration, the withdrawal of British troops, etc., stating that if the answer was not satisfactory, it would be regarded as 'a formal declaration of war.' The government of Great Britain replied that the conditions demanded were such that the government deemed it impossible to discuss them. Hostilities immediately followed." 3 SECTION 46. EFFECT OF WAR. The secondary effects of war are to suspend all non-hostile intercourse between citizens of the hostile states; to change the rights of such citizens, in respect to their dealings with neutrals, and to abrogate those treaties which can have force only in time of peace, e. g., of amity, commerce, navigation, etc.; to suspend those treaties which are permanent and naturally revive at the end of the war, e. g., of boundaries, public debts, etc., and to bring into operation treaties concerning the conduct of hostilities.* SECTION 47. TERMINATION OF WAR. A war may be terminated either by the complete submission of one of the parties to the conflict, by conquest; by the cessation of hostilities between the 8 Wilson and Tucker on International Law, page 230. • Wilson and Tucker on International Law, page 234. parties to the conflict; or by a treaty of peace duly concluded. SECTION 48. EFFECTS OF WAR UPON PROPERTY RIGHTS. In early times all rights of property disappeared in times of war, and the belligerents were entitled to seize all the property of their enemies, public or private, real or personal, on land or on sea, without any restrictions. This harsh rule has been greatly modified in recent times, greater advance having been made in relation to property on land as well as to property on sea. SECTION 49. PROPERTY ON LAND. The public personal property of the enemy country may still be appropriated, as well as the rents and profits of the public real property. A country also has the right (not now exercised) of confiscating all property belonging to citizens of the hostile country, which may be found within their limits, and also of confiscating debts due to their own citizens by such citizens of the hostile country." 5 In Brawn vs. United States," the Supreme Court of the United States, said: "The material question made at bar is this, can the pine timber, even admitting the property not to be changed by the sale in November, be condemned as a prize of war? The cargo of the Emulous having been legally acquired and put on board the vessel, having been detained by an embargo not intended to act on foreign property, the vessel having sailed before the war, from Savannah, under a stipulation to reland the cargo in some port of the United States, the re Brawn vs. The United States, 8 Cranch, 110. • Ware vs. Hylton, 3 Dallas, 199. 18 Cranch, 110. The English decisions are to the contrary. landing having been made with respect to the residue of the cargo, and the pine timber having been floated into shallow water, where it was secured and in the custody of the owner of the ship, an American citizen, the Court cannot perceive any solid distinction, so far as respects confiscation, between this property and other British property found on land at the commencement of hostilities. It will therefore be considered as a question relating to such property generally, and to be governed by the same rule. "Respecting the power of government, no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court. "The questions to be decided by the court are: "1st. May enemy's property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war? "2nd. Is there any legislative act which authorizes such seizure and condemnation? "Since in this country, from the structure of our government, proceedings to condemn the property of an enemy found within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in execution of some existing law, we are led to ask: "Is the declaration of war such a law? Dces that declaration by its own operation, so vest the property of the enemy in the government, as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion of which depends on the will of the sovereign power? "The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. "Between debts contracted under the faith of laws, and properly acquired in the course of trade, on the faith of the same laws, reason draws no distinction; and, although, in practice, vessels with their cargoes, found in port at the declaration of war, may have been seized, it is not believed that modern usage would sanction the seizure of the goods of an enemy on land, which were acquired in peace in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the right of war. But although the practice in this respect may not be uniform, that circumstance does not essentially affect the question. The inquiry is whether such property vests in the sovereign by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends on the national will; and the rule which applies to one case so far as respects the operation of a declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of a sovereign to confiscate debts being precisely the same with the right to confiscate other property found in the country, the operation of a declaration of war on debts and on other property found in the country must be the same. What, then, is this operation? "Even Bynkershoek, who maintains the broad principle, that in war everything done against an enemy is lawful; that he may be destroyed, though unarmed and defenseless; that fraud, or even poison, may be employed against him; that a most unlimited right is acquired to his person and property; admits that war does not transfer to the sovereign a debt due to his enemy; and, therefore, if payment of such debt be not exacted, peace revives the former right of the creditor; 'because,' he says, 'the occupation which is had by war consists more in fact than in law.' He adds to his observations on this subject, 'let it not, however, be supposed that it is only true of actions, that they are not condemned ipso jure, for other things also belonging to the enemy may be conceded and escape condemnation.' "Vattel says, that 'the sovereign can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration.' "It is true that this rule is, in terms, applied by Vattel to the property of those only who are personally within the territory at the commencement of hostilities; but it applies equally to things in action and to things in possession; and if war did, of itself, without any further exercise of the sovereign will, vest the property of the enemy in the sovereign, his presence would not exempt it from this operation of war. Nor can a reason be perceived for maintaining that the |
