CHAPTER XXI.

TRADE WITH THE ENEMY.

CONTENTS.

1. Property of subjects and allies engaged in trade with the enemy liable to confiscation-2. Exceptions-23. Rule rigorously enforced-24. Cases of attempt to evade it-25. Withdrawal from enemy's country at beginning of war- -26. Distinction between cases of domicil and mere residence -87. Necessity of a license discussed - 8. Decisions in the United States -89. Where order of shipment cannot be countermanded - 10. Good faith or mistake no defense - 11. Different kinds of trade - 12. Vessels liable to capture during continuous voyage - 13. When offense 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-2 18. Distinction between native subject and domiciled stranger-19. Effect of acceptance of a license from the enemy20. Possessions and colonies of the enemy - 21. Rule of insurance.

§ 1. 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 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 favor of its own subjects, without the consent of its co-belligerent, 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 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. (Manning, Law of Nations, p. 122; Chitty, Law of Nations, pp. 276, 277; Bynkershoek, Quaest. Jur. Pub., lib. 1, caps. 9 and 15; Wheaton, Elem. Int. Law, pt. 4, ch. 1, §§ 13, 14; Phillimore, On Int. Law, vol. 3, §§ 69, et seq.; Heffter, Droit International, § 123; Duer, On Insurance, vol. 1, pp. 555, 579; The Neptunus, 6 Rob. Rep., p. 406; The Noyade, 4 Rob. Rep., p. 251; The Eenigheid, 1 Rob. Rep., p. 210; The Hoop, Rob Rep., p. 200; The Jonge Pieter, 4 Rob. Rep., p. 79; The Julia, 1 Gallis. Rep., pp. 601-603; The Rapid, 8 Cranch. Rep., p. 155.)

§ 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 regulations. Without such direct permission of the state, no commercial intercourse with the enemy is allowed to subsist. (Wheaton, Elem. Int. Law, pt. 4, ch. 1, § 13; Duer, On Insurance, vol. 1, p. 556; The Hoop, 1 Rob. Rep., pp. 199, 200; Manning, Law of Nations, p. 123; Bello, Derecho Internacional, pt. 2, cap. 2, §3; Heffter, Droit International, § 123; Wildman, Int. Law, vol. 2, p. 245; Jacobsen, Seerecht, §§ 719–731; Phillimore, On Int. Law, vol. 3, § 75.)

§ 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 rigor. "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 conscience." No matter how, or under what circumstances, such trade may be carried on, or attempted, (with the single exception already mentioned,) the same penalty of confisca tion will attach. It, therefore, is not necessary that the ship in which the goods, engaged in such illegal traffic, are transported, should also belong to a subject of the belligerent whose rights are violated. The vessel may be neutral, but the neutrality of the flag, where the traffic is illegal, will afford no more protection to the goods of a subject than to those of an enemy. It is by means of neutral vessels that such illegal traffic is usually carried on, as appears in most cases in which condemnation has been pronounced. Any attempt by a subject to import goods from the enemy's country, without the license of his own government, is a violation of duty on his part, and involves his property so employed, in the penalty of confiscation. It is not necessary that these goods should be the fruits of any purchase, barter, contract, or negotiation, in the enemy's country after hostilities had commenced. The sailing of the vessel with the goods on board after the party had a knowledge of the war, completes the offense, stamps the cargo with an illegal character, and subjects it, during its transportation, to a rightful seizure. The propriety of strictly adhering to this rule is vindicated by Judge Story, with his usual ability, in the case of The Rapid, where the question is fully discussed. (Duer, On Insurance, vol. 1, pp. 556–559; The Lady Jane, cited 1 Rob. Rep., p. 202; The William, cited 1 Rob. Rep., p. 214; The Juffrow Louisa Margaretha, cited 1 Rob. Rep., p. 202; The St. Philip, cited 8 Term Rep., p. 556; Eenigheid, cited 1 Rob. Rep., p. 210; The Fortuna, cited 1 Rob. Rep., p. 211; The Mary, 1 Gallis. Rep., p. 620; The Rapid, 1 Gallis. Rep., p. 295; 9 Cranch. Rep., p. 132; The Alexander, 8 Cranch. Rep., p. 159; Heffter, Droit International; Wildman, Int. Law, vol. 2, p. 245; Nau, Volkerseerecht, § 263.)

§4. Numerous attempts have been made to evade this rule by allegations of special exceptions. In cases of this kind it has been alleged that the property in the specific goods was

acquired before the war, as in the cases of The Louisa Margaretha and The Rapid, or that the goods were actually shipped as well as purchased before hostilities commenced, as in the cases of The Eenigherd, The Fortuna, and The Mary; or that the ship on which the goods were found had been forcibly detained, as in the case of The Alexander; or that the goods were the produce of funds in the enemy's country which the party had no other means of withdrawing, as in the cases of The Lady Jane, The William, and The Rapid. It was once decided by the English court of common pleas, that goods might be lawfully exported from an enemy's country, although purchased during the war, where the sole object of the purchase was to enable the parties to remit to their own country their funds and effects, which were in the enemy's country when the war was declared; but this exception was subsequently overruled by the court of the king's bench. (Duer, On Insurance, vol. 1, pp. 467, 468, 560; Potts v. Bell, 8 Term. Rep., p. 548; Bell v. Gilson, 1 Bos. and Pul. Rep., p. 345; The Juffrow Louisa Margaretha, cited 1 Rob. Rep., p. 203; The Rapid, 1 Gallis. Rep., p. 295; 9 Cranch. Rep., p. 132; The Eenigheid, 1 Rob. Rep., p. 210, cited; The Fortuna, 1 Rob. Rep., p. 211, cited; The Mary, 1 Gallis. Rep., p. 620; The Alexander, 8 Cranch. Rep., p. 169; The Lady Jane, 1 Rob. Rep., p. 202; The William, 1 Rob. Rep., p. 214, cited.)

§ 5. Vattel and Burlamaqui concur in the doctrine, that both justice and humanity require that persons who are surprised by a war in an enemy's country, should have a reasonable time to withdraw their persons and effects, and ought not to be treated as enemies, unless their departure should be unreasonably delayed. This view is countenanced by several eminent writers on public law, and the language of Sir William Scott, on several occasions, seems to justify the conclusion that a distinction in favor of persons thus circumstanced would be admitted in the English admiralty. "It seems a necessary deduction," says Mr. Duer, "from these views, that, in the judgment of these writers, the property of persons thus withdrawing themselves from the enemy's country, would, in the course of transportation, be entitled to the protection of their own government; since, otherwise, the very object of the lenity exercised toward