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the enemy and seize his property, though, by established custom, this right is restricted to such only, as are the commissioned instruments of the government for such purpose.
Trade and commerce presuppose the existence of civil contracts and business relations, and a recourse to judicial tribunals; and this is necessarily incompatible with a state of war.
Trade and commerce, by enriching the merchants of the enemy, and thus enabling them to contribute to the support of their government, as well as by replenishing the treasury of the enemy by the payment of export duties upon the merchandise brought from his country, operate directly to aid and assist the enemy, by furnishing him with the very sinews
Besides, any individual profit or advantage which might accrue from the continuance of commercial intercourse, is far outweighed by a consideration of the public welfare, which requires a cessation of the extraordinary facilities which it affords, of conducting a traitorous correspondence with the enemy, and of conveying intelligence that the public safety demands should be withheld.
A review of the English and American authori. Review of ties, and the luminous and learned commentaries of ions on the Sir William Scott (Lord Stowell) and of Mr. Jus- subject. tice Story, illustrating the true character and extent of the principle by which all commercial intercourse is interdicted between belligerents, and of the circumstances under which it has been applied and enforced, cannot fail to be instructive, as well to the statesman and lawyer, as the merchant.
The leading English cases are, “The Hoop" (1
Robinson, 196) and “Potts vs. Bell et als." (8 Term Rep. 548). In the case of “ The Hoop,” it appeared that Mr. Malcolm of Glasgow, and other merchants of Scotland, had traded with Holland, for articles necessary for the agriculture and manufactures of Scotland. They had several times applied for, and procured, the king's license for this trade during the war; but, after the passing of certain acts of Parliament, being erroneously informed by the commissioners of the customs at Glasgow, that such licenses were no longer necessary, they omitted to procure one upon the occasion in question, and, in consequence of this, the cargo being taken, was condemned as prize.
The case of “ Potts vs. Bell et als.” was upon a policy of insurance effected by the plaintiff, a British subject, upon goods purchased by him from the enemy, during hostilities, and shipped from the enemy's country on board a neutral ship. The policy was held to be illegal and void.
“There exists,” says Lord Stowell, “a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid down by Bynkershoek, as
universal principle of the law. Ex natura belli commercia inter hostes cessare, non est disputandum. He proceeds to observe:
“The interests of trade, and the necessity of oh. taining certain commodities, have sometimes so far overpowered this rule, that different species of traf: fic have been permitted, but it is, in all cases, the act and permission of the sovereign (Bynk. 6, 1 c.
3). Wherever that is permitted, it is a suspension of the state of war, quoad hoc. It is, as he expresses it, pro parte sic bellum, pro parte pax inter subditos utriusque principis.”
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 removing 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 would 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 reconcilable with the general interests 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 color of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme, and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if
Contracts suspended be
necessary) under the eye and control of the govern ment, charged with the care of the public safety?
Another principle of law of a less politic nature, tween bellige but 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 Courts closed that is, the total inability to sustain any contract against their 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 judicis. The peculiar law of our own country applies this principle with great rigor.
“The same principle is received in our 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 hac 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 hac vice. But otherwise he is totally ex lex. Even in the case of ransoms, which were contracts, but contracts 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.
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 proof that the law imposes legal disability 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 natural use of courts of justice, are inseparable. He says that cases of commerce are undistinguishable from cases of any other species, in this respect. Si hosti semel .permittas actiones exercere, difficile est distinguere, ex qua causa orian. tur, nec potui animadvertere illam distinctionem unquam usu fuisse servatam.
Upon these, and similar grounds, it has been the established 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 license, subjects the property to confiscation, and the most eminent persons of the law, sitting in the supreme courts, have uniformly sustained such judgments.
“In all cases of this kind which have come before this tribunal, they have received a uniform determination. The cases which I have produced, prove that the rule has been rigidly enforced where acts of Parliament have, on different occasions, been made to relax the navigation law and other Relaxation of revenue acts, where the government has authorized, pension of under the sanction of an act of Parliament, a home particular ward trade from the enemy's possessions, but has cas not specifically protecte i an outwirl trade to the