"states it to have been the law of France, whether the "trade was attempted to be carried on in national or in "neutral vessels: it will appear, from a case which I shall "have occasion to mention (the Fortuna), to have been "the law of Spain; and it may, I think, without rashness, "be affirmed to have been a general principle of law in "most of the countries of Europe. 66 66 66 66 By the law and constitution of this country, the Sovereign alone has the power of declaring War and Peace"he alone, therefore, who has the power of entirely re"moving the state of War, has the power of removing it in part, by permitting, where he sees proper, that commercial "intercourse which is a partial suspension of the War. "There may be occasions on which such an intercourse 66 may be highly expedient. But it is not for individuals "to determine on the expediency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very recon"cileable with the general interest of the State. It is for "the State alone, on more enlarged views of policy, and "of all circumstances that may be connected with such an "intercourse, to determine when it shall be permitted, and "under what regulations. In my opinion, no principle ought to be held more sacred than that this intercourse "cannot subsist on any other footing than that of the direct permission of the State. Who can be insensible to the consequences that might follow, if every person in time "of War had a right to carry on a commercial intercourse "with the enemy, and, under colour of that, had the means "of carrying on any other species of intercourse he might "think fit? The inconvenience to the public might be ex"treme; and where is the inconvenience, on the other side, "that the merchant should be compelled in such a situa"tion of the two countries to carry on his trade between "them (if necessary) under the eye and control of the "Government charged with the care of the public safety? 66 66 66 66 Another principle of law, of a less politic nature, but 66 equally general in its reception and direct in its application, forbids this sort of communication as fundamentally "inconsistent with the relation at that time existing between "the two countries; and that is, the total inability to sustain "any contract by an appeal to the tribunals of the one "country on the part of the subjects of the other. In the "law of almost every country, the character of alien enemy "carries with it a disability to sue, or to sustain in the language of the civilians a persona standi in judicio. The "peculiar law of our own country applies this principle "with great rigour. The same principle is received in our 66 66 Courts of the Law of Nations; they are so far British "Courts, that no man can sue therein who is a subject of "the enemy, unless under particular circumstances that pro "hâc vice discharge him from the character of an enemy; "such as his coming under a flag of truce, a cartel, a pass, "or some other act of public authority that puts him in "the King's peace pro hâc vice. But otherwise he is totally exlex; even in the case of ransoms which were "contracts, but contracts arising ex jure belli, and tolerated "as such, the enemy was not permitted to sue in his own proper person for the payment of the ransom bill; but "the payment was enforced by an action brought by the "imprisoned hostage in the Courts of his own country, for "the recovery of his freedom. A state in which contracts "cannot be enforced, cannot be a state of legal commerce. "If the parties who are to contract have no right to compel "the performance of the contract, nor even to appear in a "Court of Justice for that purpose, can there be a stronger 66 66 66 proof that the law imposes a legal inability to contract? "to such transactions it gives no sanction; they have no legal existence; and the whole of such commerce is attempted without its protection and against its authority. Bynkershoek expresses himself with great force upon this argument in his first book, chapter 7, where he lays "down that the legality of commerce and the mutual use "of Courts of Justice are inseparable: he says, that cases 66 66 "of commerce are undistinguishable from cases of any "other species in this respect-Si hosti semel permittas "actiones exercere, difficile est distinguere ex quâ causâ "oriantur, nec potui animadvertere illam distinctionem unquam usu fuisse servatam. 66 "Upon these and similar grounds it has been the esta"blished rule of the law of this Court, confirmed by the “judgment of the Supreme Court, that a trading with the enemy, except under a royal licence, subjects the property "to confiscation:-and the most eminent persons of the law sitting in the Supreme Courts have uniformly sustained "such judgments.” 66 An uniform current of English precedents is cited as supporting this opinion. The highest authority of the N. A. United States confirms this judgment of Lord Stowell. "No principle," says Mr. Justice Story, "of "national or municipal law is better settled than that all "contracts with an enemy, made during War, are utterly "void. This principle has grown hoary under the reverend respect of centuries, and cannot now be shaken "without uprooting the very foundations of national "law" (h). No rule of law is in fact better established by the universal usage of the community of States. This rule of interdiction in no degree arises from the commerce being carried on by sea: the principles of public policy and public law equally forbid commercial intercourse by land; and when an enemy existed in the other part of the island of Great Britain, such intercourse was deemed equally criminal in the jurisprudence of our country (i). (h) Brown v. United States, 8 Cranch's (Amer.) Rep. 136. See also 1 Kent's Comm. 66-7. The Rapid, 8 Cranch's (Amer.) Rep. 155. Griswold v. Waddington, 15 Johnson's (Amer.) Rep. 57. 16 ib. p. 438. s. c. Scholefield v. Eichelber, 7 Peter's United States (Amer.) Rep. 586. (i) Mason v. Gist, 1 Durnford & East's Rep. 85. Potts v. Bell, 8 ib. 548. When the belligerent maritime rights and the question of licences come under consideration, we shall see with what strictness this rule has been applied to cases in which supplies have been brought to a British colony during its temporary subjection to the enemy, and to cartel ships. In the last War between Russia and England, it pleased the Crown of England both to waive a great portion of her belligerent rights respecting neutral States, and also, with respect to her own subjects, to allow, with certain exceptions relating to Contraband of War and Blockade, that her subjects might, during and notwithstanding the hostilities with Russia, freely trade with all ports and places, wheresoever situate, which were not in a state of blockade, save and except that no British vessel should, 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 the possession or occupation of Her Majesty's enemies (k). LXX. Every State has a right to call home its subjects who are in a foreign country, when their presence is deemed necessary by the Government for the defence of their country. Every State has a right to forbid its subjects to serve the enemy against their country, and to punish them in case of disobedience. The same principle applies to prohibit all communication or correspondence, and, as we have seen, all commerce with the enemy. It is simply a question of policy and expediency whether, and with what degree of vigour, the right shall be enforced. But all contracts with the enemy are null and void,-even the insurance of an enemy's property (k) Order in Council, dated 15th April, 1854. But even under this Order it is not lawful for the enemy to sell his ship in the ports of this country.-The Odessa, Spinks, Prize Rep. 208, April 12th, is illegal, upon the ground of its being a species of intercourse with the enemy; for the same reason bills of exchange drawn by the subject of one belligerent upon the subject of the other belligerent, are illegal and void. The remission of funds in money, or bills, to subjects of the enemy, the purchase of bills, or the deposit of funds in the enemy's country, are unlawful, because they tend to improve the resources and strengthen the hands of the enemy (1). In fine, every communication with the State, however circuitous, is prohibited, unless it be sanctioned by the special authority of the Go vernment. LXXI. It has been holden by the Law of England that if a man be adherent to the King's enemies in his realm, that is, the subjects of foreign Powers with whom the King is at open War, giving to them aid and comfort in the realm or elsewhere, he is guilty of treason. This must be proved by some overt act, as by giving them intelligence (m), by sending them provisions, by selling them arms, by treacherously surrendering them a fortress, or the like (n). In the case of Rex v. William Stone (o), which was tried in 1796, the report is as follows: The prisoner was tried at the bar of this Court on the 28th and 29th days of January in this term, upon an indictment for high treason, on two branches of the 25 Ed. III. st. 5. c. 2., for compassing the death of the King, and for adhering to his enemies. The overt acts were the same in each count, being eleven in number; but that to which the evidence chiefly applied, was the conspiring with John Hurford Stone, William Jackson, and others unknown, to collect intelligence within this kingdom and the kingdom of Ireland of the disposition of the King's subjects in case of (1) 1 Kent's Comm. p. 69. (m) Rex v. Dr. Hensey, 1 Burrow's Rep. 650. R. v. Stone, 6 Durnford & East's Rep. 527. (n) 3 Inst. x. Stephen's (Blackstone's) Comm. vol. iv. (ed. 1858), p. 228. (0) 6 Durnford & East's Rep. 527. |