vessel, and, on leaving, gave him a safe-conduct as far as the Bermudas. Again, in 1780, an English captain entered the Spanish port of San Fernando de Omoa, in Honduras, without knowing that it was belligerent. The Spanish commandant refused to take advantage of his ignorance, but permitted him to provision his ship and to sail unmolested to Jamaica. On the other hand, the French squadron which entered Louisburg, in the Island of Cape Breton, in 1745, ignorant of its hostile character, was captured as prize, and its officers and crews retained as prisoners of war. The French captain Nalin entered the port of Granada, in the Antilles, in the war 1780, ignorant of its hostile character. He was immediately seized as prisoner of war, and his vessel as a good prize. In 1799 a Prussian vessel, La Diana,' forced to take refuge in the port of Dunkirk, was restored by the French Tribunal on the principle of res sacra miser; but in the analogous case of 'Maria Arendz,' in 1800, the Court condemned, in strict conformity with the French ordonnances. A court may be compelled by a sense of duty to condemn in such cases, but the sovereign power of the State might well exercise its sense of humanity and generosity by restoring even after condemnation. Notwithstanding the plea raised by French writers in such cases that, le malheur opère de plein droit une trève, the principle is neither admitted by the general law of nations, nor by the maritime ordonnances of France.1

1 Nor by the practice of France during the Revolution.

Pistoye et Duverdy, Des Prises, vol. i. pp. 114, 122; Ordonnance de 1681; Ordonnance de 1696, May 12; Réglement de 1778, July 26, Arts. 14, 15; Arrêté de 1800, March 27, Arts. 19, 20; Déclaration de 1854, March 29.

154

CHAPTER XXIII.

TRADE WITH THE ENEMY.

1. Property of subjects and allies engaged in trade with the enemy liable to confiscation-2. Exceptions-3. Rule rigorously enforced— 4. Cases of attempt to evade it-5. Withdrawal from enemy's country at beginning of war-6. Distinction between cases of domicile and mere residence-7. Necessity of a licence discussed-8. Decisions in the United States-9. Where order of shipment cannot be countermanded-10. Good faith or mistake no defence-11. Different kinds of trade-12. Vessels liable to capture during continuous voyage -13. When offence is completed-14. Share of partner in neutral house-15. Transfer of ships-16. Regularity of papers not conclusive-17. Trade by resident or domiciled stranger-18. Distinction between native subject and domiciled stranger-19. Effect of acceptance of a license from the enemy-20. Possessions and colonies of the enemy-21. Rule of insurance.

§ I. IT may be stated, as a general proposition, that the property of a subject found engaged in trade or intercourse with the ports, territories, or subjects of a public enemy, is liable to confiscation. This rule is not founded on any peculiar criminality in the intentions of the party, or on any direct loss or injury resulting to the State, but is the necessary consequence of a state of war, which places the citizens or subjects of the belligerent States in hostility to each other, and prohibits all intercourse between them. The protection of the interests and welfare of the State makes the application of this rule especially necessary to the merchant and trader, who, under the temptations of an unlimited intercourse with the enemy, by artifice or fraud, or from motives of cupidity, might be led to sacrifice those interests. The same rule is

1 See United States v. Boxe of Arms (1 Bond, 446) as to the application of this rule to the States which joined the Southern Confederacy during the American Civil War. See also Gay's Gold (13 Wall, 358), and United States v. Homeyer (2 Bond, 217) as to the effect of the Acts of Congress, Proclamations, &c., on the same rule.

No contract made with an alien enemy, in time of war, can be enforced in England, even though the plaintiff enemy does not sue till the return of peace (Willison v. Patteson, 7 Taunt. 439); but a contract between two English subjects, in an enemy's country, is legal (Antoine v. Morshead, 6 Taunt. 239); if an enemy be put in the King's peace, by

applicable to the subjects of an ally. Where two or more States are allied in a war, the relations of the subjects of the ally toward the common enemy are precisely the same as those of the subjects of the principal belligerent. In this respect, there is no distinction between the two; and if the courts of their own country do not enforce the rights and duties of war, those of the principal or co-belligerent may do so, for the tribunals of all have an equal right to enforce the laws of war, and to punish any infractions, whether committed by the subjects of their own government, or of that of an ally. As neither of the allies in a common war can relax in favour of its own subjects, without the consent of its cobelligerent, the general rule which prohibits all commercial intercourse with the common enemy, it is held that the subjects of one State cannot plead in the prize courts of its ally the permission of their own sovereign to engage in such prohibited trade, and that such permission will not exempt from condemnation the property so employed. This rule seems to be founded on good and substantial reasons. We quote the remarks of Sir William Scott on this point. 'It is of no importance,' he says, 'to other nations, how much a single belligerent chooses to weaken and dilute his own rights. But it is otherwise when allied nations are pursuing a common cause against a common enemy. Between them, it must be taken as an implied, if not an express contract, that one State shall not do anything to defeat the general object. If one State permits its subjects to carry on an interrupted trade with the enemy, the consequence may be that it will supply that aid and comfort to the enemy, especially if it is means of a flag of truce, or other act of public authority, he is entitled to sue (Gist v. Mason, 1 Term R. 86), and the modern practice has been to allow debts and actions to revive on the return of peace. It has been decided in the United States that war does not confiscate debts or property for the benefit of debtors or agents, but only suspends the right of action. After peace, the obligation of an agent, who has collected funds in the territory of one belligerent upon account of a resident in the other to pay over to his principal, revives.-Caldwell v. Harding, I Low, 326. In the English courts Wolffe v. Oxholm (6 M. and Sel. 92) decides that private debts cannot be confiscated.

Where members of a partnership are belligerents, war dissolves the partnership as to future joint dealings, though not as to winding up the affairs of the firm. Thus, where a partner resided in a belligerent territory, it was held that he could not after the breaking out of the rebellion appoint an agent and give him partnership funds to purchase cotton for the firm.-Cramer v. United States, 7 Ct. of Cl. 302.

an enemy depending very materially on the resources of foreign commerce, which may be very injurious to the prosecution of the common cause, and the interests of its ally.' He therefore concludes, that it is not enough to say that one State has given its permission, but that it should also appear that the trade has the allowance of the confederate State, or that it can, in no manner, interfere with the common operations.

§ 2. There are but two exceptions to this general rule interdicting trade with the enemy: first, the mere exercise of the rights of humanity, and, second, the trade sanctioned by the license or authority of the government. The first of these exceptions would permit intercourse with the enemy, to such a limited extent, and of so rare an occurrence, as to require no particular discussion; the second results from the fact that on certain occasions it is highly expedient for the State to permit an intercourse with the enemy, by commerce or otherwise; but the State alone, and not individuals, must determine when it shall be permitted, and under what regulalations. Without such direct permission of the State, no commercial intercourse with the enemy is allowed to subsist.'

1 Manning, Law of Nations, p. 122; Chitty, Law of Nations, pp. 276, 277; Bynkershoek, Quaest. Fur. Pub., lib. i. caps. ix. and xv.; Wheaton, Elem. Int. Law, pt. 4, ch. i. §§ 13, 14; Phillimore, On Int. Law, vol. iii. §§ 69, et seq.; Heffter, Droit International, § 123; Duer, On Insurance, vol. i. pp. 555, 579; Wildman, Int. Law, vol. ii. p. 245; Jacobsen, Seerecht, $$ 719-731; the Neptunus,' 6 Rob. 406; the 'Hoop,' Rob. 200; the Ceres, 3 Rob. 79; the Nayade,' 4 Rob. 251.

During the Crimean War licences to trade were not issued by the British Government, but it was declared by Order in Council of the 15th April, 1854, that 'all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in Her Majesty's dominions all goods and merchandise whatsoever, to whomsoever the same may belong; and to export from any port or place in Her Majesty's dominions, to any port not blockaded any cargo or goods, not being contraband of war, or not requiring a special permission, to whomsoever the same may belong; and save and except only, as aforesaid, all the subjects of Her Majesty, and the subjects or citizens of any neutral or friendly State shall and may, during and notwithstanding the present hostilities with Russia, freely trade with all ports and places wheresoever situate, which shall not be in a state of blockade, save and except that no British vessel shall under any circumstances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to, or be in possession or occupation of, Her Majesty's enemies." An Ionian subject was held to be in the same position as a British subject, and his vessel was condemned by an English Prize Court, for trading with Russia during the above-mentioned war.-The 'San Spiri

§ 3. The rule which prohibits every form of commercial intercourse or trade with the enemy, whether by the subjects of the belligerent or of his allies, is enforced in courts of prize with a stern and inflexible rigour. No motives of compassion or indulgence,' says Mr. Duer, 'prompted by the hardship of the particular case, nor any views of public utility, derived from the innocent or beneficial nature of the particular traffic, are ever allowed to suspend or mitigate its application. Such considerations are not regarded as legal distinctions that can operate to create an exception from the general rule. They may influence properly the discretion of the executive power, but must be rejected by the judicial

dione,' 2 Jur. N.S. 1238. See Esposito v. Bowden (7 E. and B. 763), and the 'Odessa' (Spinks Pr. R. 208), as to the effect of the above Order in Council (and of other similar proclamations), on the trade of a British subject with the enemy, also the 'Teutonia' (1 Aspin. Mar. Cas. 32).

A voyage from an enemy to a neutral port, but with directions to put into a British port to obtain a licence, the proof of such directions and consequent intention being clear, was held not to be illegal, or a breach of a certain prohibitive Order in Council of January, 1807; restitution accordingly, with captors' expenses.-The 'Mercurius' (Edwards, 53) and the Minna' therein cited.

The conveyance of passengers for hire held equivalent to the conveyance of goods for freight, and therefore to be a trading within the prohibitions prescribed by the Orders in Council of April 26, 1809, prohibiting all trade by neutrals with France.-The 'Rose in Bloom,' 1 Dodson, 58.

A resident in England cannot enter into an engagement to raise money by way of loan to assist subjects of a foreign State to prosecute a war against a Government in alliance with England, without the licence of the Crown.-Demetrius de Wütz v. Hendricks, 9 Moore C. P. Rep. 580.

By Art. 77 of the French Penal Code, anyone who may engage in schemes or enter into communication to supply the enemy with money is punishable with death. For the opinion of the English Courts see R. v. Hensey, I Burr. R. 650.

As to the punishment of holding correspondence with the Confederates by subjects of the United States, during the last Civil War, see Act of February 25, 1863, 12 Stat. at L. 696.

A British subject resident in a neutral country may engage in trade with the enemy of his own country, but not in articles of a contraband nature, the duties of allegiance travelling with him so as to restrain him to that extent. The 'Neptunus,' 6 Rob. 409; the 'Ann,' I Dodson, 223; the 'Emanuel,' 1 Rob. 302.

A British-born subject domiciled in a neutral country is not prevented from trading with a country inimical to his own.-Bell v. Reid, and Bell v. Buller, 1 M. and S. 726; Marryatt v. Wilson, 1 B. and P. 430.

I

Commerce by a person resident in an enemy's country, even as representative of the Crown of England, is illegal and the subject of prize, however beneficial to his country, unless authorised by licence.-Ex parte Baglehole, 18 Ves. jun. 528; 1 Rose, 271. But a supply of articles for the use of the British fleet was held to be an exception to the rule.-The 'Madonna delle Gracie,' 4 Rob. 195.