State of war. plied by the enemy'. The same interdiction of trade applies to ships of truce, or cartel ships, which are a with the species of navigation intended for the recovery of the Trade Enemy. English rule. liberty of prisoners of war. Such a special and limited intercourse is dictated by policy and humanity, and it is indispensable that it be conducted with the most exact and exclusive attention to the original purpose, as being the only condition upon which the intercourse can be tolerated. All trade, therefore, by means of such vessels is unlawful, without the express consent of both the governments concerned'. It is equally illegal for an ally of one of the belligerents, and who carries on the war conjointly, to have any commerce with the enemy. A single belligerent may grant licenses to trade with the enemy, and dilute and weaken his own rights at pleasure, but it is otherwise when allied nations are pursuing a common cause. The community of interest, and object, and action, creates a mutual duty not to prejudice that joint interest; and it is a declared principle of the Law of Nations, founded on very clear and just grounds, that one of the belligerents may seize, and inflict the penalty of forfeiture, on the property of a subject of a co-ally, engaged in a trade with the common enemy, and thereby affording him aid and comfort, whilst the other ally was carrying on a severe and vigorous warfare. It would be contrary to the implied contract in every such warlike confederacy, that neither of the belligerents, without the other's consent, should do any thing to defeat the common object3. [In nearly all the topics above discussed, considerable changes and relaxations of the ancient harshness have 1 Case of the Bella Guidita, in 1785, cited in the case of the Hoop, 1 Rob. Rep. 174. The Venus, 4 Rob. 355. The Carolina, 6 Rob. 336. The Rose in Bloom, 1 Dodson, 60. 3 The Nayade, 4 Rob. 251. The Neptunus, 6 Rob. 403. The Aina, 1 Eccl. and Admiralty Reports (Spinks) 315. The subjects that are discussed in the text, beginning with that of enemy's persons and property within the country of the other belligerent and ending with that of contracts with an enemy, will be found treated at more or less length in the following modern works. Heffter, Droit Intern. §§ 120-128. Phillimore, Vol. 1. §§ 6775 and 87-89. Twiss, Vol. II. ch. 1. §§ 11, 12, and ch. I. Wildman, Vol. II. ch. 1. Wheaton's Elements, Vol. II. Part IV. ch. I. §§ 9-15. Halleck's International Law, ch. xv. §§ 8—20. been introduced by the orders and regulations issued at the commencement of the late Russian war. In answer to a deputation of Russian merchants who waited on Lord Clarendon in March 1854, his Lordship stated "that the British government were disposed to respect the persons and property of all Russian subjects residing as merchants in this country to the full extent promised by the Emperor of Russia towards British subjects; and that all necessary measures should be adopted to enable them to remain unmolested in the quiet prosecution of their business'." By a notice published in the Moniteur, it was announced that the subjects of Russia might continue their residence in France under the protection which the laws provide for foreigners on condition that they respected those laws; whilst the same protection was accorded by the Russian declaration of the 7th April, 1854, to all British and French subjects resident in Russia. The following important answer of Lord Clarendon to a question proposed by merchants interested in the Russian trade, whether produce of Russia brought over the frontier by land and shipped from thence by British or neutral vessels would be subject to seizure and confiscation, still further illustrates the present policy of this country with reference to commercial intercourse with the enemy. After stating that the question turned not on the place of origin, nor the mode of conveyance of the property but on the true ownership or interest, or risk in and destination of it, Lord Clarendon went on to say that, if shipped at neutral risk or after having become bona fide neutral property, it would not be liable to condemnation whatever its destination, but if it still remained enemy's property, notwithstanding it was shipped from a neutral port and in a neutral ship, it would be condemned whatever its destination. If it were British property or shipped at British risk, it would be condemned should it be proved to be really engaged in a trade with the enemy. "If there has been a bona fide and complete transfer of ownership to a neutral (as by purchase in a neutral market) the goods will not be liable to condemnation, notwithstanding they may have come to that neutral 1 24th March, 1854. State of war. Trade with the Enemy, as altered by the Russian War, 1854-56. Enemy's persons and pro perty. State of war. Enemy's persons and property, as affected by the war with Russia, 1854-56. Exemption of neutral goods and neutral ships. market from the enemy's country either over land or by sea'.' Then came the adoption by England and France of the principle "free ships free goods," the complete adhesion to the rule exempting neutral goods in enemy's vessels from confiscation, and the Order in Council of the 15th April, 1854, allowing all vessels under a neutral or friendly flag, to import into and to export from any port or place in her Majesty's dominions to any port or place not blockaded, all goods and merchandize, and any cargo not contraband of war or requiring a special permission; thus largely relaxing, nay almost entirely removing the old restrictions upon trade with the enemy, and allowing such trade indirectly and through the medium of a neutral flag. Nor are the rules and orders bearing upon the subject of the seizure of enemy's merchant shipping less remarkable for the liberal policy they have sanctioned. Thus by English and French orders bearing date the 24th, 28th and 29th of March respectively, protection was given to Russian vessels which had left Russian ports before the time fixed in the Order, and a delay of six weeks was granted such vessels to quit the ports of England and France, or where they had left the ports of Russia previous to the declaration of the war that they might enter and complete their cargoes; and by an order of the 15th April, 1854, the former one of the 29th of March was still farther extended. Not less liberal were the regulations published by Russia on the same subject, being in fact conceived in almost the same terms as those above described ". 1 Times Newspaper, March 25th, 1854; and see as to this doctrine the Ionge Pieter, 4 C. Rob. 84. By the Russian Declaration issued upon the commencement of hostilities with Turkey it is among other things proclaimed that the subjects of neutral states may continue uninterrupted commercial intercourse with Russian Ports and Towns on condition that they observe the laws of the Empire and the principles of International Law. See London Gazette, June 3, 1877, and Times Newspaper, same date. 2 See them described at length in the second volume of Wheaton, pp. 534, 535, note (173), ed. 1863, by W. B. Laurence. See also State Papers, Vol. 60, 1864-70, p. 899, for a similar declaration by the Federal Council at Berlin on the outbreak of the Franco-German War, 1870. See equally liberal provisions in the Russian Declaration cited in the preceding note in §§ 1. and 11. of war. and pro perty, as affected by the Russia, tion of debts. As regards Embargo the order of the 29th of March State declared that a general embargo or stop should be made Enemy's of all Russian ships or vessels whatever within any of her persons Majesty's dominions, together with all persons and effects on board except such as came under the special circumstances of the exempting order of the 29th of March war with above specified. With reference to the confiscation of 1854-56. debts, the law of Great Britain has always pursued 66 a Embargo. policy of a liberal and wise character," holding that the right of the original creditor to sue for the recovery of a debt is not extinguished but only suspended by the war, reviving again when peace is restored. Whatever prerogative the Crown may have to confiscate debts due Confisca from individuals before the commencement of the war, it has never adopted such a course of proceeding as to confiscate any debt due to an alien enemy from any of its subjects; "nor," as Lord Alvanley said in Furtado v. Rodgers, "is it very probable that such a course of proceeding will ever be adopted'."-And therefore when, some little time after the commencement of the civil war in America, by an act of the Confederate Congress of August 21, 1861, property of whatever nature save public stocks and securities held by an alien enemy was declared confiscated, Earl Russell, after appealing to the principle laid down by Mr Wheaton as being in direct opposition to such conduct, and pointing out the peculiar application of that principle to the case of a civil war between different parts of the confederation, during whose union the subjects of foreign states were invited and induced to settle in its various states without any ground for contemplating such a disruption, protested in the strongest language against an act as rare in modern practice, as it was grossly unjust and faithless in prin-ciple.] on Public In the investigation of the rules of the modern law of Judicial nations, particularly with regard to the extensive field of decisions maritime capture, the courts of the United States gene- Law. rally and freely refer to the decisions of the English courts. These latter courts are in the habit of taking 1 3 Bos. and Pull. 201. Ex parte Boussmaker, 13 Vesey 71. Wheaton's Elements, Vol. II. Part IV. ch. 1. § 9 apud finem. 3 Parliamentary Papers, 1862. Corresp. relating to the Civil War, p. 108, State of war. Judicial decisions on Public Law. accurate and comprehensive views of general jurisprudence, and have been deservedly followed by those of the United States, on all the leading points of national law. The United States possess a series of judicial decisions made in England, and in their own country, in which the usages and the duties of nations are explained and declared with that depth of research, and that liberal and enlarged inquiry, which strengthen and embellish the conclusions of reason. They contain more intrinsic argument, more full and precise details, more accurate illustrations, and are of more authority, than the loose dicta of elementary writers. When those courts in the United States, which are charged with the administration of international law, have differed from the English adjudications, they must take the law from domestic sources; but such an alternative is rarely to be met with, and there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanetion of American national courts. "We have attained the rank of a great commercial nation (says Mr Chancellor Kent), and war, on our part, is carried on upon the same principles of maritime policy, which have directed the forces and animated the councils of the naval powers of Europe. When the United States formed a component part of the British empire, our prize law and theirs was the same; and after the revolution it continued to be the same, as far as it was adapted to our circumstances, and was not veried by the power which was capable of changing it." The great value of a series of judicial decisions, in prize cases, and on other questions depending on the law ci nations, is, that they liquidate, and render certain and stable the loose general principles of that law, and show their application, and how they are understood in the country where the tribunals are sitting. They are, therefore, deservedly received with very great respect, and as presumptive, though not conclusive, evidence of the law in the given case. This was the language of the Supreme Court of the United States, so late as 1815', and the decisions of the English High Court of Admiralty, especially since the year 1798, have been consulted and uniformly respected by that court, as enlightened 19 Cranch, 198. |