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Published online by Cambridge University Press: 04 May 2017
According to the theory accepted by the American and English courts, and by nearly all the American and English writers on international law, war between nations is war between their individual citizens. It makes of the citizens or subjects of one belligerent, enemies of the citizens or subjects of the other. The whole nation is embarked in one common bottom and must be reconciled to submit to one common fate. The government at war is the representative of the will of all the people and acts for the whole society. According to the rival theory, which, though first put forward by Rousseau merely as a philosophical principle, has been accepted by a large number of Continental jurists as a fundamental principle of international law, war is a relation between states in which individuals are enemies only accidentally, not as men nor even as citizens, but simply as soldiers. Under the Anglo-American theory, the private property of the nationals of each belligerent, on land or sea, is in principle subject to capture and confiscation by the other belligerent.
1 Sutherland v. Mayer, 70 L. Ed. 574 (1925).
2 Herrera v. United States, 222 U. S. 558 (1911).
3 The Rapid, 8 Cranch, 155 (1814).
4 Kent, Commentaries, Abdy's ed., p. 174.
5 Rousseau, Du Contrat Social, I, c. 4; Cobbett Pitt, Leading Cases on International Law, 3d ed., 2, p. 16.
6 Fairfax v. Hunter, 7 Cranch, 620 (1813); Miller v. United States, 11 Wall. 268 (1871);Herrera v. United States, 222 U. S. 558 (1911).
7 Pitt Cobbett, op. cil., p. 16; Hall, International Law, p. 64 et seq.; Holland, War on Land, p. 12.
8 Latifi, Effects of War on Property, p. 49.270
9 3 Secret Journals of Congress, 6,18, 27.
10 EX Journals 971; cited by J. Reuben Clark, Emergency Legislation, p. 212.
11 1 American State Papers, 201-237.
12 32 Congressional Globe, 1715.
13 3 Secret Journals of Congress, 206.
14 3 Dali. 199 (1796).
15 3 Secret Journals, 484.
16 4 Secret Journals, 208.
17 Annals of Congress, Vol. 4, 3d Cong., 1st Sess., pp. 535-556.
18 2 American State Papers, 171
19 8 Cranch, 110.
20 Cf. Wheaton, Dana's ed., p. 389.
21 28 Federal Cases, No. 17039.
22 31 Congressional Globe, 414
23 32 Congressional Globe, 2191
24 11 Wall. 268, 20 L. Ed. 135.
25 William E. Barton, The Life of Abraham Lincoln, Vol. 2, p. 245
26 McPherson, Political History of the United States during the Great Rebellion (4th ed.), p. 198.Google Scholar
27 Herrera v. United States, 222 U. S. 558 (l91l).
