fore, are in a large measure to be deprived of the benefits of the general law governing civil rights. On the contrary, it adopts the principle that war is waged only against the enemy state as such, and against its armed forces, and that the subjects of the enemy state as regards civil rights are in the same legal position as before the war, except in so far as legislation may create exceptions. This principle does not preclude the adoption of special laws, as has been frequently done during the present war, especially by way of retaliation, prescribing a different treatment of enemy subjects."/

Speaking of Rousseau's theory, Pearce Higgins, War and the Private Citizen, 12-14, says: "Rousseau's doctrine has never been accepted by British and American writers, and the history of all modern wars affords overwhelming evidence of its falsity. As it stands, the doctrine of Rousseau is an endeavor to distinguish individuals from the state which they compose, and to treat the state as something separate and apart from them. . . . The phrase, however, contains an element of truth, which has been the vital spark within it. It is a striking way of drawing attention to the fact that in modern times increased emphasis has been laid on the distinction between the combatant and non-combatant portions of the belligerent states. The saying of Rousseau is true only to this extent, that private citizens who refrain both in word and deed from taking part in hostilities will, with some important exceptions, now be left unmolested as regards their persons, and their lives and honor will be respected by the belligerent forces. .. The instructions for the Government of the armies of the United States in the Field contain the truer view of war. 'Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civil existence that men live in political, continuous societies, forming organized units, called States, or nations, whose constituents

bear, enjoy and suffer, advance and retrograde together, in peace and in war' (Art. 20). The 'Instructions' then go on to point out that the citizen of a hostile country is an enemy as one of the constituents of the hostile state, and as such is subjected to the hardships of war." The rejection of Rousseau's theory does not mean the unqualified application of the doctrine: Omnia licere in bello quae necessaria sunt ad finem belli.

The principle of the English and American law is expressed in the maxim: Inimici nostræ civitatis sunt inimici nostri. This view finds its extreme expression in the acts of several of the American States during the Revolutionary War, confiscating the property of British subjects, and in the Act of the Confederate Congress of August, 1861, confiscating the property of non-resident alien enemies.

It is thus set forth in the opinion of Johnson, J., in The Rapid (1814), 8 Cr. 155, 3 L. ed. 520: "In the state of war, nation is known to nation only by their armed exterior; each threatening the other with conquest or annihilation. The individuals who compose the belligerent states exist, as to each other, in a state of utter occlusion. If they meet, it is only in combat. War strips man of his social nature; it demands of him the suppression of those sympathies which claim man for a brother; The universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse. The whole nation are embarked in one common bottom, and must be reconciled to submit to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy-because the enemy of his country."

The same view is expressed by Justice Isaacs of the Australian High Court, in a late case: "We have to start with the fundamental truth that war means hostility between nations, and nations are to-day regarded from the standpoint

of territoriality. With us, the Sovereign has the prerogative of declaring war and making peace. When he declares war, the whole nation is at war, and in a state of hostility to the whole of the opposing nation considered territorially." Moss and Phillips v. Donohoe (High Court, 1915), 20 Com. L. R. 580.

But in practice the harshness of this abstract rule is considerably modified, and the modern Anglo-American view is well stated by Coleman Phillipson in his edition of Wheaton, International Law (1916): "War is primarily a relation between States and Governments, represented in the conflict by definite military and naval forces; it is only secondarily a relation between the respective subjects individually. Peaceable and inoffensive inhabitants taking no part in the contest should be immune from attack. Neither person nor property should be injured or damaged, if the legitimate purpose of the belligerent is not thereby clearly promoted, and the overcoming of his enemy not facilitated."

The same view is announced in a late American case: "The President has very carefully distinguished between the German government and the German people, and the sins of that government ought not to be visited upon the people except so far as the legitimate interests of the United States require." Lane, V. C., in Posselt v. D'Espard (N. J., 1917), 100 Atl. 893.

It is submitted that the final result is the same under either theory-the difference lies in the point of departure.

Views of jurists as to legality of trading with the enemy.

As early as the sixteenth and seventeenth centuries, two opposing views prevailed as to the legality of trading with the enemy, and were given practical application, particularly in the wars between Spain and the Netherlands. According to one view, a complete prohibition of trading arises by reason of the existence of a state of war. Accord

ing to the other view, no prohibition arises until provided for by some form of legislative act.

Grotius (1583-1645), De jure belli et pacis, III, c. 22, holds that private contracts with the enemy touching private actions and things are unlawful and controlled by the superior duty which the citizen owes to his own state.

In 1737, Bynkershoek (1673-1743), Quæstiones juris publici, 1, c. 3, declared "that from the nature of the war itself, all commercial intercourse ceases between enemies. For what purpose would trade be carried on, if, as is clearly the case, the goods of enemies brought into our country, are liable to confiscation?"

Pufendorf (1632-1694), De jure naturæ et gentium, VIII, c. 7, section 14, and Vattel (1714-1767), Droit des gens, III, c. 16, section 264, also appear to limit the right of trade to cases of necessity.

Heineccius (1681-1741), Opera omnia, II, Pt. 2, 98, declares that all commerce ceases as of course with the enemy. "Nor can it truly be permitted that we should enter into negotiations with those with whom we are at war, since there can be no safe intercourse between each other, and we hazard personal captivity and confiscation of property, in the very attempt."

Chancellor Kent in Griswold v. Waddington (1819), 16 John. (N. Y.) 438, reviews all of the old international law authorities, and declares that "we see that the highest authorities on the law of nations, Grotius, Pufendorf, Burlamaqui, Vattel, Bynkershoek, and Heineccius, and a series of more subordinate and local opinions, such as those of Borius, Cleirac, Valin, and Emerigon, and the maritime ordinances of Spain, France, Holland and Sweden, unitedly prove, that all private communications and commerce with an enemy in time of war, are unlawful, and that, by the mere fact and force of the declaration of war, all the subjects of

the one state are placed in direct hostility to all the subjects of the other."

The entire doctrine was, however, vigorously assailed as early as the middle of the eighteenth century by De Mably, Droit public de l'Europe, II, 310, who characterizes the doctrine as "un reste de notre ancienne barbarie" and suggests that while it might be imprudent to grant the same liberality of commerce as in times of peace, the belligerents should, nevertheless, agree upon certain places where their merchants could meet for the purpose of carrying on trade.

Pinheiro-Ferreira, Cours de droit public interne et externe, II, 108, condemned the doctrine as contrary to the principle that a war is a relation between states and not between individuals, and that from an economic point of view, a rupture of commercial relations tended toward the enrichment of neutrals at the expense of the belligerents.

Bluntschli, Das moderne Völkerrecht, Art. 674, favors the view that commercial intercourse should remain uninterrupted, unless considerations of a military or political nature demand a different course. Military considerations might demand an absolute cessation of all intercourse wherever the opposing armies are in the occupation of a particular territory, and political considerations may justify a belligerent to adopt a policy of non-intercourse in order the sooner to terminate the war in its favor.

Geffcken (note to Heffter, section 123), says that to permit a continuation of commerce between the citizens of the opposing belligerents, while the governments, themselves, are in open war, would mean the adoption of conflicting policies. The citizens are bound to assist the state with every means in their power, and they may not look to their personal interests in so far as such interests are contrary to the common interest of all.

The English and American authorities such as Wildman, Castle, Phillimore, Travers-Twiss, Wheaton, Kent, Wool