§ 95. Where a subject of one country resides in an enemy's country voluntarily, without forcible detention, and carries on commerce there, he becomes an alien enemy.3 So, also, the same rule obtains where a neutral voluntarily resides in an enemy's country, and carries on.trade there;4 nor does it matter, in such cases, that he is there in the capacity of consul.5 liberal in their favor. But the whole statute provision is remarkably loose and vague in its terms, and it is lamentably defective in being confined to the case of children of parents who were citizens in 1802, or had been so previously. The former Act of 29th January, 1795, was not so; for it declared generally, that ' the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.1 And when we consider the universal propensity to travel, the liberal intercourse between nations, the extent of commercial enterprise, and the genius and spirit of our municipal institutions, it is quite surprising that the rights of the children of American citizens, born abroad, should, by the existing Act of 1802, be left so precarious, and so far inferior in the security which has been given under like circumstances, by the English statutes." This provision has, however, been held to be prospective in its operation. See West v. West, 8 Paige, 433; Peck v. Young, 26 Wend. 613. 1 1 Black. Comm. 373.
2 Code Civil, L. 1, tit. 1, 9.
3 O'Mealey v. Wilson, 1 Camp. 482; McConnell v. Hector, 3 Bos. & Pul. 113. An alien enemy may have an agent in the enemy's country to collect debts and preserve his property. Hale v.Wall, 22 Gratt. 424 (1872); Ward v. Smith, 7 Wall. 447. In Hale v. Wall, the court say: "The question has very recently undergone a careful examination by this court, and the proposition was affirmed by all the judges, that whilst the authority of an agent to transmit money to his principal would be suspended by war, because such transmission would involve direct intercourse with the enemy, which is unlawful; the authority to collect and preserve remains unimpaired. And the debtor cannot, in such case, lawfully refuse to pay to the agent, nor the agent.refuse to receive payment. Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 614, 635-638.
4 Ibid. 5 Albretcht v. Sussmann, 2 Ves. & Beam. 323.
§ 96. An alien friend may make any contract with a citizen, either within or without the country, and while the country of which he is a citizen is at peace with the country of which the other party is a citizen, such contract may be enforced by legal process.1 But during a war between the two countries, his legal right to sue upon such contract is suspended, and only revives with the return of peace.2 And if at the trial the state of war continues, the defendant is entitled to judgment.3 A contract which has been entered into between citizens of different nations during war, it has been said, is utterly void, and does not become binding on return of peace; for the law declares such contracts to be illegal, on the ground that the alien enemy is thereby enabled to withdraw from the country its resources of defence, and to convert them to purposes injurious to its interests.4 This subject was very carefully examined in a late case in Massachusetts, and it was there declared, that the law of nations, as judicially settled, prohibits all intercourse between citizens of the two belligerents which is inconsistent with the state of war between their countries; and this includes any act of voluntary submission to the enemy, or receiving his protection, as well as any act or contract which tends to increase his resources; and every kind of trading or commercial dealing or intercourse, whether by transmission of money or goods, or orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmissions, or by insurances upon trade with or by the enemy. Beyond the principle of these cases the prohibition has not been carried by judicial decision. The more sweeping statements in the text-books are taken from dicta, and it was there said that at this age of the world, when all the tendencies of the law of nations are to exempt individuals and private contracts from injury or restraint in consequence of war between their governments, the court were not disposed to declare such contracts unlawful as have not been adjudged to be inconsistent with a state of war. It was therefore held, upon the most careful consideration of the subject, that a lease of land by a citizen of a rebel State, during the late civil war or rebellion, to a citizen of Massachusetts, then residing there, was not invalid; and the lessor was allowed to sue and recover the rent in the courts of that State.1 Yet if such alien enemy reside within the United
1 Bac Abr. Alien, D.; Chitty on Cont. 181.
2 Bac Abr. Alien, D.; Ex parte Boussmaker, 13 Ves. 71; Flindt v. Waters, 15 East, 260; Willison v. Patteson, 7 Taunt. 439 (Am. ed.) and note; Clarke v. Morey, 10 Johns. 69; Buchanan v. Curry, 19 Johns. 138. "By the general law a state of war puts an end to all executory contracts between the citizens of the different countries. Whatever contract remains then in fieri, is either suspended or dissolved flagrante hello." The ship Francis, 1 Gall. 448. The sale of a ship, absolutely and bond fide by an enemy to a neutral, imminente bello or even flagrante hello, is not illegal. Sorensen v. Reg., 11 Moore, P. C. 119.
3 See Barrick v. Buba, 2 C. B. (n. s.) 563 (1857); Esposito v. Bowden, 7 El. & Bl. 763.
4 Willison v. Patteson, 7 Taunt. 439; Brandon v. Nesbitt, 6 T. R. 23.
1 Kershaw v. Kelsey, 100 Mass. 561 (1868). The opinion of Judge Gray contains such an exhaustive examination of this subject as to justify the following extract: "It is," says he, "universally admitted that the law of nations prohibits all commercial intercourse between belligerents, without a license from the sovereign. Some dicta of eminent judges and learned commentators would extend this prohibition to all contracts whatever. In a matter of such grave importance, the safest way of arriving at a right result will be to examine with care the principal adjudications upon the subject, most of which were cited in the argument.