[218] Griswold v. Boddington (1819), 16 Johnson, 438; Esposito v. Bowden (1857), 7 E. & B. 763.
[219] Du Belloix v. Lord Waterpark (1822), 1 Dowl. & R. 16; Mayer v. Reed (1867), 37 Gallison, 482.
[220] Hoare v. Allan (1789), 2 Dallas, 102.
[221] Esposito v. Bowden (1857), 7 E. & B. 763. See also the Teutonia (1870), L. R. 4 Privy Council, 171.
[222] Brandon v. Curling (1803), 4 East, 410; but see also Potts v. Bell (1800), 8 D. & E. 548; Furtado v. Rodgers (1802), 3 P. & B. 191; Kellner v. Le Mesurier (1803), 4 East, 396; Gamba v. Le Mesurier (1803), 4 East, 407.
[223] New York Life Insurance Co. v. Stathem, v. Symes, and v. Buck (1876), 93 United States, 24; New York Life Insurance Co. v. Davis (1877), 95 United States, 425.
It must be specially observed that, if the continental interpretation of article 23 (h) of the Hague Regulations—see above, § [100a]—were not contradicted by Great Britain and the United States of America, both countries would be compelled to alter their Municipal Laws in so far as these declare such contracts as have been entered into with alien enemies before the outbreak of war dissolved, void, or suspended. Article 23 (h) distinctly enacts that it is forbidden to declare extinguished or suspended the rights of the nationals of the adverse party. Since, however, as stated above in § [100a], Great Britain and the United States of America uphold a different interpretation, this article does not concern their Municipal Laws respecting trading with alien enemies.
Position of Belligerents' Property in the Enemy State.
§ 102. In former times all private and public enemy property, immoveable or moveable, on each other's territory could be confiscated by the belligerents at the outbreak of war, as could also enemy debts; and the treaties[224] concluded between many States with regard to the withdrawal of each other's subjects at the outbreak of war stipulated likewise the unrestrained withdrawal of the private property of their subjects. Through the influence of such treaties as well as of Municipal Laws and Decrees enacting the same, an international usage and practice grew up that belligerents should neither confiscate private enemy property nor annul enemy debts on their territory. The last case of confiscation of private property is that of 1793 at the outbreak of war between France and Great Britain. No case of confiscation occurred during the nineteenth century, and although several writers maintain that according to strict law the old rule, in contradistinction to the usage which they do not deny, is still valid, it may safely be maintained that it is obsolete, and that there is now a customary rule of International Law in existence prohibiting the confiscation of private enemy property and the annulment of enemy debts on the territory of a belligerent. This rule, however, does not prevent a belligerent from seizing public enemy property on his territory, such as funds, ammunition, provisions, rolling stock of enemy state-railways, and other valuables; from preventing the withdrawal of private enemy property which may be made use of by the enemy[225] for military operations, such as arms and munitions; from seizing and making use of rolling stock belonging to private enemy railway companies, other means of transport of persons or goods which are private enemy property, and, further, all appliances for the transmission of news, although they are private enemy property, provided all these articles are restored and indemnities are paid for them after the conclusion of peace;[226] and from suspending, as a measure of self preservation, the payment of large enemy debts till after the conclusion of peace in order to prevent the increase of resources of the enemy.