compensation only to persons who were domiciled on German soil in 1871, and of these to subjects of those neutral States only who promised reciprocal treatment in a similar case. Bismarck refused compensation to Germans settled in France who had suffered by the war, and who, of course, could get no relief from the Government of their domicile, on the ground that if citizens carried on business abroad they must take the risks of losses as well as the prospect of greater gains which such trade offered.

France, then, has shown the way towards a more generous usage and a fuller recognition of the solidarity of the State; while Prussia, from motives of policy, in 1866 indemnified in part the subjects of Saxony, upon whom it had imposed requisitions during the war, and in the Franco-German war recognised, though grudgingly, the duty of the State to pay back to its own citizens some of their war losses.

The most generous practice, however, hitherto recorded is to be found in England's conduct towards the conquered Boers after the South African war of 1900-1902. Here was not so much a case of a country compensating its own loyal citizens as of a victor charging itself to relieve the conquered subjects. And her action in this way forms a fitting pendant to England's general conduct of war on land, which has always been most progressive and regardful of individual rights. By the Treaty of Vereeniging she covenanted to set aside the sum of 3,000,0007. for repatriating the Boers, and beyond this "to allow all notes made under Law 8 of 1900 of the South African Republic, and all receipts given by officers on the field of the late Republic or under their orders, to be presented to a Judicial Committee, and if such notes and receipts are found to have been duly issued in return for valuable consideration they will be received by the Commissioners as evidence of war losses, and will give a right to compensation." In other words, England took on herself to honour not only the obligations of her own officers, but those of the enemy's officers. She followed here the example set by Italy in Lombardy in 1859; but Italy's action was perforce, whereas hers was voluntary.

As regards other precedents of conquest, the United States Government had refused to give any compensation for the damage caused in Alabama by Shearman's raid, and Germany had refused to compensate Danish subjects for requisitions in Schleswig-Holstein after the war of 1863-1864. England's action was then a forward step in the recognition of State responsibility for war losses, all the more remarkable in that it was an obligation which was assumed as an Imperial one by the mothercountry, whose taxpayers were called upon to pay 4,500,0007. sterling for the exactions of the contending armies upon conquered subjects thousands of miles away! Nor did England's generosity stop at the payment of requisitions. The Government made a voluntary gift of 2,000,000l. towards relieving the other war losses of loyal subjects and neutrals, excluding only from a share of this subvention limited liability companies and large firms. It has been said that "Solomon himself, even if backed by the purse of Fortunatus, would probably make more enemies than friends if he had to give compensation for war losses."1 And doubtless the commissioners did not satisfy everybody in their adjudication of the money. Over two thousand claims of foreigners alone were considered, and, though claimants only received a dividend, the compensation paid to conquered subjects and strangers was greater in proportion to the loss than that paid by the French Government to their own subjects in 1871.

England's generous example in the South African war can hardly be regarded as a precedent for future international usage, for few other nations would pursue so enlightened a policy towards their late enemies. But at the same time, taken in combination with the French practice during the nineteenth century and other indications, it shows that the State is now willing to assume part responsibility for the war losses of subjects, to compensate them fully for regular exactions, and, so far as it can, for exceptional damage. The habit of compensation may be considered as the recognition in national law and policy of the modern international conception of war which is

1 Beale, Aftermath of War.

embodied in the laws drawn up by the Hague Conference. Just as the belligerent must direct his attack upon the State and not on the citizen, so each nation itself must at the end of war make the burden of loss as far as possible national, and reinstate private persons in their property. Viewed in relation to the broad currents of political development in modern times, it illustrates the introduction of State Socialism into the sphere of war and international law. The solidarity of the nation, which in the Middle Ages justified the destruction of the property of the individual enemy subject, now has as its corollary the compensation of the individual by his own State for losses incurred on its behalf.

CHAPTER V.

WAR AND COMMERCE BETWEEN BELLIGERENTS.

BESIDES its interference with private property in the way of destruction and appropriation, war affects the production of wealth between enemy subjects; for the general law of nations is taken to put a stop to all intercourse between them on the outbreak of war. Bynkershoek stated the principle which since his time has been considered binding: "Ex natura belli commercia inter hostes cessare non est dubitandum." The reason of the law is that it is incongruous for States to be at war and their citizens to continue their ordinary peaceful intercourse, which may involve mutual service and enrichment. The aim of a belligerent is to weaken his enemy by every possible means, so as to impair his powers of resistance; if he had the power he would prohibit all trade with him altogether. For commerce provides the sinews of war either directly, by the supply of war material, or indirectly, by the creation of wealth. The former kind of commerce the belligerent, in view of his overbearing necessity, has a right to interdict altogether against neutrals and his own subjects alike. The latter he forbids by his sovereign power to his subjects, to his enemies jure belli; but except as a part of military operations, i.e., by siege or blockade, he cannot enforce the prohibition on neutral subjects. A further reason for annulling contracts between enemy subjects is that the alien enemy has no locus standi in the Courts during war: he is ex lex, outside the law, and cannot sue on any contracts or torts either personally or by attorney during hostilities.

It is through his municipal law that a belligerent sovereign enforces these rights against his subjects, and he may, in his own interest or with a view to obtaining certain commodities, or, again, by way of comity, exempt by royal licence specific kinds of trading, or all trading for a limited time from the

general prohibition. "Prout e re sua subditorumque suorum esse censent principes," as Bynkershoek says. But otherwise the prohibition occurs de facto on the outbreak of war. The English Government waived its strict rights at the opening of the Crimean war, when, by an Order in Council after the declaration of war, six weeks were given to all vessels trading with the enemy to load and depart, and all trade and contracts between enemy subjects which could be carried out during that time were held to be valid.1

The illegality of trading with the enemy was not at first recognised by the English common law; but Lord Stowell's judgment in the case of Hoop' was taken as authoritative, and from this time the doctrine of the Admiralty Court, which had always maintained the illegality, may be considered to have been incorporated into the general law of the country. The effect of the law is :

(1.) That any goods seized after the outbreak of war by an English cruiser, which prove to be proceeding to

or from an alien enemy trader, are confiscated to the captor.

(2.) That any contract made upon such trading is illegal and invalid, and will not be enforced by the Courts either during or after the war.

(3.) That all contracts made between people residing in the belligerent countries are void.

3

A theoretical exception to this last rule exists in favour of contracts arising out of the state of war, as ransom bills given by the master of a captured merchantman to his captor in consideration of release; but as these transactions have been discountenanced by all the chief European Powers during the last century, they need not be seriously regarded. Apart from contracts arising upon trade between enemy subjects, war theoretically dissolves all executed and all executory contracts

1 Clementson v. Blessig, 11 Exch. 135. An indulgence of this nature will probably be the rule in future, in order to avoid ruinous interference with halfcompleted transactions.

2 1 C. Rob. 196.

3 Cf. Cornu v. Blackburne (1781), 2 Doug. 640; Snow, p. 310.