The Laws of War, Affecting Commerce and ShippingThomson, H. Byerley (Henry Byerley)
History
The Laws of War, Affecting Commerce and Shipping
Thomson, H. Byerley (Henry Byerley)
Maritime law; War (International law); War, Maritime (International law)
A man is said to be permanently an Alien Enemy, when he owes a
permanent allegiance to the adverse belligerent, and his hostility is
commensurate in point of time with his country's quarrel. But he who
does not owe a permanent allegiance to the enemy, is an enemy only
during the existence and continuance of certain circumstances.[58]
The character of enemy arises from the party being in what the law
looks upon as a state of allegiance to the state at war with us; if
the allegiance is permanent (as in the case of a natural-born subject
of the hostile Sovran), the character is permanent.
But with respect to the man who is an alien enemy from what he does
under a local or temporary allegiance to a power at war with us--when
the allegiance ends, the character of alien enemy ceases to exist.[59]
Of course all persons owing a natural allegiance to the enemy are our
enemies; but on the same broad principles of natural justice that
impress a temporary character upon our friends and fellow countrymen,
under special circumstances individuals from amongst our natural
enemies become our friends and fellow subjects.
* * * * *
[Sidenote: Prisoners of War.]
The first among these are Prisoners of War.
A Prisoner of War is _not_ adhering to the King's enemies, for he is
here under the protection from the King. If he conspires against the
King's life it is high treason; if he is killed (malice aforethought),
it is murder. He is not, therefore, in a state of actual hostility. At
one time it was ruled, that a prisoner of war could not contract; but
that case was thought hard. Officers on their parole must subsist like
other men of their own rank; but if they could not contract they must
starve; for they could gain no credit if deprived of the power of
sueing for their own debts. A prisoner in confinement is protected as
to his person, and if on parole he has protection in his credit
also.[60]
He is allowed to support himself, and add to his personal comfort, by
applying himself in his trade or business, and may maintain an action
on his contract for his wages; nor can he be compelled, when sueing
for money necessary for his support, to give security for costs like
any other foreigner temporarily resident in this country.[61]
* * * * *
[Sidenote: Married Foreigners.]
A wife generally follows the country and allegiance of her husband;
but where she is in this country of necessity, or is here owing
allegiance by her birth, and her husband is an alien enemy and under
an absolute disability to come and live here, the law steps in to her
aid, and gives her the privileges of an unmarried woman, so that she
may sue and be sued, and make contracts for and against herself, for
her maintenance. "Her case," says Chief Justice Holt, "does not differ
from that of those ladies who were allowed to sue and be sued upon the
adjuration or banishments of their lords, as if they had been
sole."[62]
Public-domain text, read in full here on John Shaqi.
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