if she had been taken in the same voyage in which the offence was committed, she would be considered as still in delicto, and subject to confiscation; but it was contended that her voyage terminated at the enemy's port, and that she was on her return, on a new voyage. But the Court said, that even admitting that the outward and homeward voyage could be separated, so as to render them two distinct voyages, still, it could not be denied that the termini of the homeward voyage were St. Petersburg and the United States. The continuity of such a voyage could not be broken by a voluntary deviation of the master, for the purpose of carrying on an intermediate trade. That the going from the neutral to the enemy's country was not undertaken as a new voyage, was admitted by the claimants, who alleged that it was undertaken as subsidiary to the voyage home. It was, in short, a voyage from the neutral country, by the way of the enemy's country; and, consequently, the vessel, during any part of that voyage, if seized for any conduct subjecting her to confiscation as prize of war, was seized in delicto. (a)

§ 315. We have seen what is the rule of public and municipal law on this subject, and what are the sanctions by which it is guarded. Various attempts have been made to evade its operation, and to escape its penalties; but its inflexible rigor has defeated all these attempts. The apparent exceptions to the rule, far from weakening its force, confirm and strengthen it. They all resolve themselves into cases where the trading was with a neutral, or the circumstances were considered as implying a license, or the trading was not consummated until the enemy had ceased to be such. In all other cases, an express license from the government is held to be necessary, to legalize commercial intercourse with the enemy. (a) 158

(a) The Joseph, Cranch, viii. 451, 455.

(a) The Franklin, Robinson's Adm. Rep. vi. 127; The Madonna delle Gracie, Ib. iv. 195; The Juffrow Catharina, Ib. v. 141; The Abby, Ib. 251. Wheaton's Rep. ii., Appendix, Note I. p. 34. Wheaton on Captures, 220–223.

[158 Intercourse with the Enemy.—In the Crimean war, the rule of non-intercourse with the enemy was greatly relaxed by the belligerents; but it was done by orders and proclamations in advance, professedly relaxing a rule which otherwise the courts of prize would have been obliged to apply. The Order in Council of 15th April, 1854, permitted British subjects to trade freely at Russian ports not blockaded, in neutral vessels, and in articles not contraband, but not in British vessels. (London Gazette, April 18, 1854.) The French orders were to the same effect. The Russian Declaration of 19th April permits French and English goods, the property of French

Trade with the

lawful on

§ 316. Not only is such intercourse with the enemy, on the part of the subjects of the belligerent State, pro- common hibited and punished with confiscation in the Prize enemy, unCourts of their own country, but, during a conjoint war, the part of no subject of an ally can trade with the common enemy, jects. without being liable to the forfeiture, in the Prize Courts of the

of

allied sub

or English citizens, to be imported into Russia in neutral vessels. (London Gazette, May 2, 1864.) The French and Russian Governments allowed private communications, not contraband in their nature, to be exchanged between their subjects by telegraph. (Courrier des Etats Unis, 23d July, 1855.)

The subject is not touched by the Declaration of Paris of 1856. The Orders in Council must therefore be considered as a special relaxation, adopted from reasons of policy applicable to that war, and as to which each nation must judge for itself in any future war. In the debates in Parliament, and in speeches made by public men in the commercial cities, as well as in the memorials of merchants, and in contributions to the press, during and soon after the Crimean war, there was a strong disposition evinced to have all trade left free, and to confine the operation of wars to government property and persons or vessels in public belligerent employment. It was said that the commerce of England was too vast to be protected by her navy, and that she would lose more than she could gain in a contest of captures with any power; and that, if direct trade with enemies was not permitted, the only result would be, that neutrals would carry the cargoes, and the belligerents would not be crippled in commerce or resources, except as to the employment of their own ships and sailors, a result which would not operate to the advantage of England. The argument on the other hand was, the necessity of requiring each citizen to follow the fortunes of his country in war. In the words of Judge Story, in The Julia (Cranch, viii. 181), "Can an American citizen be permitted in this manner to carve out for himself a neutrality on the ocean when his country is at war? Can an engagement be legal which confirms in him the temptation or necessity of deeming his personal interests at variance with the legitimate objects of his government?" Sir R. Palmer, the Attorney-General, said, “A political war and a commercial peace are inconsistent;" and he presented cogently the necessity of having it understood beforehand, that each citizen's interest should be involved in the war, and liable to its fortunes, as a means of carrying home a serious sense of responsibility to all classes for engaging in war, as well as a means of making war thorough and decisive, and therefore short and of

more rare occurrence.

The truth is, the most humane and often the most efficient part of war is that which consists in stopping the commerce and cutting off the material resources of the enemy. If cutting off our commerce with him, and his with us, cripples and embarrasses him, it must be done. Driving his general commerce from the sea, and blockading his ports to keep neutral commerce from him, must diminish his resources, and tend to coerce him. It is the least objectionable part of warfare. It takes no lives, sheds no blood, imperils no households; has its field on the ocean, which is a common highway; and deals only with persons and property voluntarily embarked in the chances of war, for the purpose of gain, and with the protection of insurance. War is not a game of strength between armies or fleets, nor a competition to kill the most men and sink the most vessels, but a grand national appeal to force, to secure an object deemed essential, when every other appeal has failed. The purpose of using force is to coerce your enemy to the act of justice assumed to be necessary. It is

ally, of his property engaged in such trade. This rule is a corollary of the other; and is founded upon the principle, that such trade is forbidden to the subjects of the co-belligerent by the municipal law of his own country, by the universal law of nations, and by the express or implied terms of the treaty of alliance subsisting between the allied powers. And as the former rule can be relaxed only by the permission of the sovereign power of the State, so this can be relaxed only by the permission of the allied nations, according to their mutual agreement. A declaration of hostilities naturally carries with it an interdiction of all commercial intercourse. Where one State only is at war, this interdiction may be relaxed, as to its own subjects, without injuring any other State; but when allied nations are pursuing a common cause against a common enemy, there is an implied, if not an express contract, that neither of the co-belligerent States shall do any thing to defeat the common object. If one State allows its subjects to carry on an uninterrupted trade with the enemy, the consequence will be, that it will supply aid and comfort to the enemy, which may be injurious to the common cause. It should seem that it is not enough, therefore, to satisfy the Prize Court of one of the allied States, to

hazardous to lay down absolute rules in advance for all nations, under all circumstances, limiting possible means of coercion. Nations should have it in their power to coerce the body politic they are at war with, by a coercion applied to all its citizens in all their interests, and to identify the private interests of each of their own subjects with the national fortunes in the war. It must be assumed that the war is a national act, resorted to from an overpowering necessity for the protection of all; and those responsible for it must remember, that the extremities to which it may reduce a nation, and the means to which it may be necessary to resort, cannot be measured in advance. The controlling motive of every citizen, whether combatant or non-combatant, should be to have the war brought to a close as soon as possible, and to do all that is necessary to that end, consistently with humanity. The policy of exerting this or that legitimate mode of coercion must be left to depend on the circumstances of each case.

Heffter (§§ 122, 123) suggests, that a declaration of war does not of itself prohibit commercial intercourse; but that such intercourse may go on, unless specially prohibited, and so far as not so prohibited. This must, however, be considered rather as an opinion on what is desirable, than as a statement of law; for all precedent and practice, and the opinions of all jurists, are the other way. The reasons which influenced him appear in the passage itself, where he speaks of citizens as die Unterthanen der streitenden Theile," of whose right of commerce he says, "die Handelsfreiheit der Einzelnen nicht erst von dem Staate kommt, sondern von denselben nur seine Beschränkungen zu enpfangen hat." The wars on the continent of Europe have been so often mere manœuvres of dynasties supported by their standing armies, in which the people have no interest, that a desire to free the people from their consequences is not unnatural in a continental writer; but different principles are applicable to States conducted by a self-governing people.]—D.

say that the other has allowed this practice to its own subjects; it should also be shown, either that the practice is of such a nature as cannot interfere with the common operations, or that it has the allowance of the other confederate State. (a)

enemy pro

§ 317. It follows, as a corollary from the principle Contracts interdicting all commercial and other pacific intercourse with the with the public enemy, that every species of private con- hibited. tract made with his subjects during the war is unlawful. The rule thus deduced is applicable to insurance on enemy's property and trade; to the drawing and negotiating of bills of exchange between subjects of the powers at war; to the remission of funds, in money or bills, to the enemy's country; to commercial partnerships entered into between the subjects of the two countries, after the declaration of war, or existing previous to the declaration; which last are dissolved by the mere force and act of the war itself, although, as to other contracts, it only suspends the remèdy. (a)159

third Persons prop- the enemy's State country

domiciled in

liable to

Opinion of

§ 318. Grotius, in the second chapter of his book, where he is treating of the liability of the erty of subjects for the injuries committed by the to other communities, lays down that "by the law of na- reprisals. tions, all the subjects of the offending State, who are Grotius. such from a permanent cause, whether natives or emigrants from another country, are liable to reprisals, but not so those who are only travelling or sojourning for a little time; - for reprisals,' says he, "have been introduced as a species of charge imposed in order to pay the debts of the public; from which are exempt those who are only temporarily subject to the laws. Ambassadors and their goods are, however, excepted from this liability of subjects, but not those sent to an enemy." In the fourth chapter of the same book, where he is treating of the right of killing and doing other bodily harm to enemies, in what he calls solemn war, he holds that this right extends, "not only to those who bear arms,

a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 10. Robinson's Adm. Rep. iv. 251; vi. 403, The Neptunus.

(a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 21. Duponceau's Transl. 165, note. Kent's Commentaries, i. 67, 68.

[159 Halleck's Intern. Law, 357. Phillimore's Intern. Law, iii. § 70. Heffter, Europ. Völker. §§ 122, 128. Manning's Law of Nations, 122–3. The Rapid, Cranch, viii. 155. The Hoop, Robinson, i. 196. The Joseph, Cranch, viii. 451, 455. Indian Chief, Robinson, iii. 22.]—D.

or are subjects of the author of the war, but to all those who are found within the enemy's territory. In fact, as we have reason to fear the hostile intentions even of strangers who are within the enemy's territory at the time, that is sufficient to render the right of which we are speaking applicable even to them in a general war. In which respect there is a distinction between war and reprisals, which last, as we have seen, are a kind of contribution paid by the subjects for the debts of the State." (a)

Opinion

rac and

Cocceius.

§ 319. Barbeyrac, in a note collating these passages, of Barbey- observes, that "the late M. Cocceius, in a dissertation which I have already cited, De Jure Belli in Amicos, rejects this distinction, and insists that even those foreigners who have not been allowed time to retire ought to be considered as adhering to the enemy, and for that reason justly exposed to acts of hostility. In order to supply this pretended defect, he afterwards distinguishes foreigners who remain in the country, from those who only transiently pass through it, and are constrained by sickness or the necessity of their affairs. But this is alone sufficient to show that, in this place, as in many others, he criticised our author without understanding him. In the following paragraph, Grotius manifestly distinguishes from the foreigners of whom he has just spoken those who are permanent subjects of the

(a)" Cæterùm non minus in hâc materiâ quám in aliis cavendum est, ne confundamus ea quæ juris gentium sunt proprie, et ea quæ jure civili aut pactis populorum constituuntur.

"Jure gentium subjacent pignorationi omnes subditi injuriam facientes, qui tales sunt ex causâ permanente, sive indigenæ, sive advenæ, non qui transeundi aut moræ exiguæ causâ alicubi sunt. Introductæ enim sunt pignorationes ad exemplum onerum, quæ pro exsolvendis debitis publicis inducuntur, quorum immunes sunt qui tantùm pro tempore loci legibus subsunt. A numero tamen subditorum jure gentium excipiuntur legati, non ad hostes nostros missi, et res eorum." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 2, § 7, No. 1.

"Latè autem patet hoc jus licentiæ, nam primùm non eos tantum comprehendit qui actu ipso arma gerunt, aut qui bellum moventis subditi sunt, sed omnes etiam qui intra fines sunt hostiles: quod apertum fit ex ipsâ formulâ apud Livium, Hostis sit ille, quique intra præsidia ejus sunt; nimirùm quia ab illis quoque damnum metui potest, quod in bello continuo et universali sufficit ut locum habeat jus de quo agimus : aliter quàm in pignorationibus, quæ, ut diximus, ad exemplum onerum impositorum ad luenda civitatis debita, introductæ sunt: quære mirum non est, si, quod Baldus notat, multò plus licentiæ sit in bello quàm in pignorandi jure. Et hoc quidem quod dixi in peregrinis, qui commisso cognitoque bello intra fines hosticos veniunt, dubitationem non habet.

'At qui ante bellum eo iverant, videntur jure gentium pro hostibus haberi, post modicum tempus intra quod discedere potuerant." Ib. lib. iii. cap. 4, §§ 6-7.