probably say that down to the 16th century all private property of whatever kind having an enemy character and found by a belligerent within his own territory was subject to confiscation. After this, however, we notice a gradual relaxation of the earlier practice, dictated, no doubt, by a perception of common interest. Sequestration of land was gradually substituted for confiscation; whilst the practice of confiscation of moveable property was greatly mitigated, first, by the bestowal on enemy subjects, either by treaty or municipal law, of a right of withdrawal, which was invariably coupled with a right to remove or dispose of their property, and next, by the formation of a usage to that effect apart from treaty. Nevertheless, down to the end of the 18th century instances of the confiscation of moveable property occur in a variety of cases not covered by treaty (p). But as the more liberal practice of allowing enemy subjects to remain during good behaviour grew in strength, this necessarily carried an immunity from interference with their property on the part of such as remained; whilst a like immunity could scarcely be refused to non-residents, who were less a source of danger than resident enemies (q). So ultimately all private property, not being of a noxious kind, came to enjoy a virtual immunity from confiscation; and this whether it consisted of land, or goods, or property of an incorporeal nature, such as debts and credits; although enemy merchant vessels found in a belligerent port at the outbreak of war remained liable to seizure until the middle of the 19th century (r). Subject to this exception, we find as from the commencement of the 19th century, only two instances of confiscation. One of these occurred in 1807, when the Danish Government issued the ordinances already referred to, sequestrating and ultimately confiscating the property of British subjects found in Denmark; a proceeding, however, which was really a measure of reprisal (s). The other occurred in 1861, when the Southern Confederacy issued a decree confiscating all property of whatsoever nature, except public stocks and securities, held by alien enemies since the 1st of May, 1861 (t). But this, again, was an exceptional measure, resorted to by a rebel Government by way of retaliation against the parent State; whilst a proposed extension of it, which would have affected foreign interests, was the subject both of protest and general condemnation (u). Passing next to legal theory, we notice a marked divergence of opinion. According to one view, there is already an obligatory custom of exemption. This is the view commonly adopted by most European writers. But this conclusion must probably be taken, in the quarters from which it proceeds, as being implicitly subject to such qualifications as may be imposed by military necessity (r); or, in any case, as being subject to such qualifications as may be imposed by the (p) See Hall, § 144: Westlake, ii. 43. (q) See Westlake, ii. 42. (r) Infra, p. 245. (s) Supra, p. 68. (t) As to the effect of this in municial law, see Dewing v. Perdicardies, 96 U. S. 193. (u) It was proposed, on the opinion of the Attorney-General of the Confederacy, to extend this to property belonging to all persons domiciled in the Northern States. This would have affected the property of British subjects, and led to a protest on the part of the British Government: see Parl. Pap. 1862, vol. Ixii. N. A. No. 1, 108. (x) See p. 129, infra. requirements of public safety or the laws of reprisal (y). According to the other view, war, although it does not of itself work a confiscation of property in this situation, yet confers on the sovereign authority a right to decree its confiscation if this should be found necessary. This may be said to represent generally the Anglo-American view, both as a matter of municipal law and as an interpretation of international law (2). In practice, however, both systems recognise the exemption of private property as a policy which ought to be followed save in exceptional cases. The difference in effect, then, between these two views does not appear to be very great. One recognises exemption as obligatory, save in cases of necessity or emergency; the other recognises a technical right of seizure, but subject to a general policy of exemption. In their practical application each would probably sanction the confiscation of private property in exceptional circumstances, such as public necessity, or by way of reprisal; whilst outside such cases, each recognises its immunity (a). EFFECT OF WAR ON COMMERCIAL RELATIONS. (1) SUSPENSION. JANSON v. DRIEFONTEIN CONSOLIDATED MINES, LTD. [[1902] A. C. 484; Scott, 589.] Case.] THE respondents on appeal, who were the original plaintiffs, were a mining company incorporated under the laws of the South African Republic, and having a head office there but having also a London office, whilst most of the shareholders were resident outside the Republic. The company had, in August, 1899, insured with the appellant and other underwriters a parcel of gold during its transit from the mine near Johannesburg to the United Kingdom; the risks insured against including, inter alia, arrests, restraints, and detainments of all kings, princes, and peoples." On the 2nd of October, 1899, the gold in question was seized during its transit by the Government of the South African Republic. It was admitted that at the time of the seizure (y) See Latifi, 49. (z) See pp. 67-8, supra; and as to the exceptional case of debts in English law, p. 70. (a) On the subject generally, see Hall, § 144; Westlake, i. 297, and ii. 38 et seq.; Latifi, 39; and Mullins, Grot. Soc. vol. vii. 89. war was imminent; and that on the 11th of October war in fact broke out between Great Britain and the Republic. Subsequently, but before the war had come to an end, the company commenced an action on the policy; the defendant having agreed not to set up the plea of alien enemy, which would otherwise have debarred the company from suing in a British Court during the war (b). The action was originally brought before Mathew, J., [1900] 2 Q. B. 339, who held that the defendant was liable; and this decision was affirmed by the Court of Appeal [1901] 2 K. B. 419. On appeal to the House of Lords, it was held that inasmuch as the insurance had been effected and the loss incurred before the actual outbreak of war, the respondents were entitled to recover; and this, even though the loss was incurred by a seizure made in contemplation of war, and in order to use the gold in support of the war. Judgments. Lord Halsbury, L.C., held, in effect, that inasmuch as the policy in question was entered into and the loss incurred before the actual outbreak of war, it could not be regarded as contrary to public policy as defined by preceding cases, even though war was imminent at the time. The Courts were not at liberty to invent new heads of public policy. The principle on which commercial intercourse must cease on war only applied where the heads of the respective States had actually created a state of war. If war ensued, such a contract was suspended owing to the fact that an alien enemy could not sue thereon during the war in the Courts of either country; but the rights under it were unaffected, and when the war was over the remedy in the Courts of either country was restored. The earlier writers on international law used to contend that a public declaration of war was essential; but this was not the existing view. At the same time it was essential that the hostility should be the act of the nation which made the war. No amount of strained relations" would affect the subjects of either country in their commercial relations or other transactions. Trading with the "King's enemies" was, of course, illegal; and so was an undertaking by contract to indemnify "the King's enemies" against loss inflicted by the King's forces; but the words "King's (b) As to the legality of this, see p. 85, infra. 66 enemies were an essential element in the proposition, and to substitute the words "aliens who might become the King's enemies would be to introduce an altogether new principle. Moreover, even if it were now competent to a Court to consider the question whether a contract such as the present was contrary to public policy, it would seem that the answer should be in the negative. To hold that such contracts were affected by the mere imminence of war would be to prescribe a test, which would be at once difficult in its application and extremely harmful in its consequences on the free commercial intercourse between nations. Lord Davey said that three rules had been established under the common law. The first was that the King's subjects could not trade with an alien enemy without the King's licence. Every contract made in violation of this principle was void, and goods which were the subject of such a contract were liable to confiscation. The second was a corollary of the first, but rested on distinct grounds of public policy. It was that no action could be maintained against the insurer of enemy's goods or ships against capture by the British Government. One of the most effectual instruments of war was the crippling of the enemy's commerce; and to permit such an insurance would be to relieve the enemy of his losses, and would, therefore, be detrimental to the interests of the insurer's own country. This principle applied even where the insurance was made prior to the commencement of hostilities and was therefore legal in its inception; and whether the person claiming on the policy was a neutral or a British subject, as the insurance was on behalf of an alien enemy. The third rule was that if a loss had taken place before the commencement of hostilities, the right of action on a policy of insurance was suspended during the continuance of war, but revived on the restoration of peace. In the present case, this third rule would have constituted a defence to the present action; but it had been waived by agreement. He had some doubt as to whether it was competent to the parties to take this course, for the reason that the objection (c) was based on considerations of public policy, and the Courts would therefore be bound to take notice of the (c) That the plaintiff was an alien enemy. company's inability to sue. But peace having now been established, he did not desire to make this point a ground of judgment. As regards each of these rules, however, the time when the rule came into operation was the actual commencement of hostilities. The attempt to extend their operation to a case where war had not occurred, but was merely imminent, appeared to be wholly unsupported by authority. Such an extension would tend to interference with lawful contracts and commercial pursuits. Nor could the Courts well decide a question as to whether war was imminent or not. Directly, this case merely decides that the legal effects of war on commercial relations will accrue only as from the time when the war actually commences. But beyond this, the judgments re-state and affirm, with all the authority attaching to the decisions of a Court of final appeal, the general rule of non-intercourse; and, more especially, its effects on contracts or other transactions subsisting between subjects of the respective belligerents at the outbreak of war (d). The rule of nonintercourse came under consideration in the same war in the case of The Mashona, 10 C. T. L. R. 450, where, amongst other things, it was laid down that one of the immediate consequences of the outbreak of hostilities was the interdiction of all commercial intercourse between the subjects of the States at war without the licence of their respective Governments, and that this prohibition applied to all persons domiciled within the belligerent States. In other words, all commercial intercourse without licence between persons "divided by the line of war" (e) is prohibited. The more important applications of this rule in English law are shortly these:-(i.) Contracts or other transactions duly entered into before the war between persons who, whatever their nationality, are divided by the line of war, are, in general, merely suspended during the war, as regards the right to performance and the right of suit. Nevertheless, even such transactions will be abrogated (1) if they enure to the aid of the enemy (f); or (2) if they cannot be carried out without involving some dealing with the enemy (g); or (3) if they are in their nature incapable of suspension (h). (ii.) On the other hand, transactions which are entered into after the commencement of the war, and between persons divided by the line of war-whether in the nature of trading ventures proper (i), or contracts of any other kind (k)—are in |